Boyles v. State, s. S

• Decision Date: 31 March 1970
• Docket Number: Nos. S,s. S
• Citation: 175 N.W.2d 277,46 Wis.2d 473
• Parties: Equinees Anthony BOYLES, Plaintiff in Error. v. STATE of Wisconsin, Defendant in Error. tate 63 and 64.
• Court: Wisconsin Supreme Court

Page 277

175 N.W.2d 277

46 Wis.2d 473

Equinees Anthony BOYLES, Plaintiff in Error. v. STATE of Wisconsin, Defendant in Error.

Nos. State 63 and 64.

Supreme Court of Wisconsin.

March 31, 1970.

In a trial before a jury, plaintiff in error, Equinees Anthony Boyles (hereinafter referred to as defendant), was found guilty of a violation of sec. 943.32(1)(b) and (2), and sec. 939.32(2), Stats., attempted robbery while armed with a dangerous weapon. Judgment of conviction was entered on January 31, 1968, and defendant was sentenced to the Wisconsin state prisons for an indeterminate term of not more than seven years.

A second writ of error was issued to review the trial court's denials on February 19, 1968 and August 27, 1968, of defendant's motions after verdict.

Daniel D. Sobel, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Allen L. Samson, Deputy Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

CONNOR, T. HANSEN, Justice.

The complainant, Mr. Harvey Rotter, was, at all times relevant, the owner of Curley's Tavern in Milwaukee. He testified that on July 6, 1967, at approximately 10:30 a.m., he approached the rear of his tavern. Rotter further testified he was at that time carrying about $15,000 in a brown, paper bag which he was taking to his tavern, having just returned from the bank; that as he approached the rear of the tavern he saw the defendant on the first landing of an outside stairway leading to apartments above the tavern. Defendant told Rotter to '(h)and me that sack'; while at the same time trying to withdraw a 'dark automatic hand weapon' from his inside coat pocket. Rotter stated that after the defendant told him to hand over the sack and while defendant was attempting to remove a gun from his coat, that he, Rotter, ran into the tavern and did not see the defendant again that day. On cross-examination, Rotter stated he saw about 75 percent of the gun including the back part and part of the barrel; and that the gun apparently stuck in defendant's coat pocket. Rotter also testified that after the defendant asked for the sack and reached for his gun, he made no further move to get at Rotter.

Mr. Daniel Huell testified that on July 6, 1967, he was in an apartment when he looked out the rear window and saw the defendant and Rotter facing each other. Huell stated the defendant 'poked in his coat * * * to get something out of his pocket,' which Huell described as a 'little snub nose * * * a small gun.' Huell testified also that he saw a little bit of the barrel.

Mrs. Bessie Hill, a witness called by the State, testified that on July 6, 1967, she was working in her garden located directly behind the rear door of Curley's Tavern. She testified seeing the defendant walking around behind the tavern; later saw the defendant and Rotter facing each other; and then saw Rotter run into the tavern and the defendant run down the alley.

The defendant testified that he did not dommit the offense and interposed an alibi defense. However, no issue has been raised on this writ of error concerning that defense.

This appeal presents two issues: (1) Was there sufficient evidence to prove the defendant guilty, beyond a reasonable doubt, of attempted armed robbery; and (2) did the trial court commit prejudicial error in charging the jury.

SUFFICIENCY OF THE EVIDENCE.

The question is whether the defendant would have committed armed robbery '* * * except for the intervention of another person or some other extraneous factor.' Sec. 939.32(2), Stats.

'* * * An unequivocal act accompanied by intent should be sufficient to constitute a criminal attempt. Insofar as the actor knows he has done everything necessary to insure the commission of the crime intended, and he should not escape punishment because of the fortuitous circumstance that by reason of some fact unknown to him it was impossible to effectuate the intended result.' State v. Damms (1960), 9 Wis.2d 183, 191, 100 N.W.2d 592, 596.

'* * * Since all attempts to commit crimes are failures to do so, a failure excuses a defendant who attempts a crime only when his actual attempt is incomplete, rather than unsuccessful. Within the contemplation of this section an attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his control or one unknown to him. State v. Damms (1960), 9 Wis.2d 183, 100 N.W.2d 592; Le Barron v. State (1966), 32 Wis.2d 294, 145 N.W.2d 79.' Huebner v. State (1967), 33 Wis.2d 505, 520, 147 N.W.2d 646, 653.

In this case there were unequivocal acts, i.e., the...