City of Milwaukee v. Wuky

• Decision Date: 02 March 1965
• Citation: 133 N.W.2d 356,26 Wis.2d 555
• Parties: CITY OF MILWAUKEE, a municipal corporation, Respondent, v. George L. WUKY, Appellant. CITY OF MILWAUKEE, a municipal corporation, Respondent, v. Frank John WERNER, Appellant.
• Court: Wisconsin Supreme Court

Page 356

133 N.W.2d 356

26 Wis.2d 555

CITY OF MILWAUKEE, a municipal corporation, Respondent, v. George L. WUKY, Appellant.

CITY OF MILWAUKEE, a municipal corporation, Respondent, v. Frank John WERNER, Appellant.

Supreme Court of Wisconsin.

March 2, 1965.

Michael D. Preston, Milwaukee, for appellants.

John J. Fleming, City Atty., Patrick J. Madden, Asst. City Atty., Milwaukee, for respondent.

HEFFERNAN, Justice.

After a jury finding of guilty, judgments were entered against each of the defendants. By such judgments, they were each fined $50.00 and costs, and, in the event of a failure to pay, the judgments further provided for imprisonment not to exceed thirty days. The costs were to be assessed equally against each of the two defendants, and such sum included $150.00 toward jury fees as to each defendant. There are three separate questions for review presented by the appeal.

Amendment of Charge.

As authority for its right to have amended the complaint at the end of the trial to charge a violation of a different ordinance from that which was originally alleged, the trial court expressly relied upon Sauk County v. Schmitz (1961), 12 Wis.2d 382, 386, 387, 107 N.W.2d 456. In that case, the defendant in a forfeiture action was charged with violating a county ordinance relative to speed. Testimony was received during the trial which described both the defendant's speed and his overtaking and passing another vehicle on the right. At the conclusion of the trial, the court decided that the speeding offense had not been proved but that an improper passing violation had been established.

Upon the appeal of the Sauk County Case, this court affirmed the judgment, saying, at page 386, 107 N.W.2d at page 458:

'The original charge, while it did not specify a violation of the ordinance requiring passing to the left, did compel inquiry into the defendant's speed, and all the circumstances and results thereof which might lead to a determination that it was unreasonable or hazardous. At the trial, there was full examination of the circumstances, and the defendant appears to have given all the explanation he had. The county court said it could not conceive of any additional facts that could change the picture, and none occur to us.

'When the court reached the conclusion that the violation proved was different from the violation charged, it could have foreclosed all question by offering defendant the opportunity to present additional evidence. The defendant did not request such opportunity, however, and we do not consider that the court abused its discretion.'

Similarly, in the case at bar, the evidence offered by the city of Milwaukee to prove a violation of ordinance sec. 107-5 incorporated a full inquiry into the defendants' conduct under ordinance sec. 90-21. The former ordinance fines a person who induces another to believe that he will receive money or other consideration in contests of skill; the latter ordinance fines a person who is the keeper of any place where liquor or malt beverages are sold if he permits any gambling or gaming on his premises.

In our opinion, the trial brought forth the facts and circumstances relevant to both ordinances. Neither in his brief nor upon oral argument did defendants' counsel show how he might have defended against the second charge in any other manner than he did against the original one. No new element was introduced by the amendment, and the claim of surprise is not well founded.

Mr. Werner, in his testimony, explained the payment of the $3.00 by saying that he was frightened by the size of the four officers and that he was returning to them the amount of money that they had inserted in the machine. He denied that the machine gave a payoff. These contentions raised factual issues which, if believed by the jury, would have constituted grounds for acquittal under the amended charge.

In Girtz v. Oman (1963), 21 Wis.2d 504, 509, 510, 124 N.W.2d 586, we discussed the wide discretion possessed by the trial court to amend pleadings in a civil action under sec. 269.44, Stats. See also Dunham v. Howard Industries, Inc. (1948), 253 Wis. 347, 360, 34 N.W.2d 140. In our opinion, the trial court did not abuse its discretion under the facts of the instant case in amending the pleadings at the end of the trial in this forfeiture action. Sauk County v. Schmitz, supra; City of Neenah v. Krueger (1932), 206 Wis. 473, 240 N.W. 402.

The defendants have failed to demonstrate that they were harmed or prejudiced in any way by the amendment of the charge. However, it would have been appropriate for the trial court, upon amending the charge, to have offered both sides an opportunity to submit additional evidence, as was suggested in the Sauk County Case.

The city has also challenged the court's amendment of the charge. The respondent's position is that it was entitled to a directed verdict of guilty as to each defendant on the original charge.

The evidence establishes that the officers used the device in question because of reports they had received which claimed that a gambling device was in use at the Holiday Bowl. Under the terms of the ordinance with which the defendants were originally charged, the use of the device must be induced by the belief that the player will receive money or other consideration. The trial court may have concluded that the element of inducement was not established so as to permit a finding of guilty under the original charge.

There was nothing apparent to a player who was unfamiliar with the machine that consideration could be obtained by playing it; the officers commenced playing (or were 'induced' to play) before they learned that a higher score could be attained by pushing a certain button on the machine. See City of...