City of Milwaukee v. Christopher

• Decision Date: 19 December 1969
• Docket Number: No. 27,27
• Citation: 172 N.W.2d 695,45 Wis.2d 188
• Parties: CITY OF MILWAUKEE, Respondent, v. Robert Alan CHRISTOPHER, Appellant.
• Court: Wisconsin Supreme Court

Page 695

172 N.W.2d 695

45 Wis.2d 188

CITY OF MILWAUKEE, Respondent, v. Robert Alan CHRISTOPHER, Appellant.

No. 27.

Supreme Court of Wisconsin.

Dec. 19, 1969.

Appellant (hereinafter Christopher), then a minor aged eighteen, was arrested on January 18, 1968, in Milwaukee, Wisconsin, and charged with drunk and disorderly conduct in violation of sec. 106--2 of the Milwaukee Code of Ordinances, which provides, in part:

'106--2. Intoxication; Indecent and Disorderly Conduct.

'(a) Any person who shall be found intoxicated in the city of Milwaukee, or who shall make use of any vulgar and obscene language, * * or who shall refuse to abide by an orderly ruling made by a person in authority, or who shall engage in any violent, abusive, loud, boisterous, vulgar, lewd, wanton, obscene, or otherwise disorderly conduct tending to create or provoke a breach of the peace, or to disturb or annoy others, * * * in said city of Milwaukee, shall forfeit a penalty of not less than one dollar ($1) nor more than one hundred dollars ($100).' (Emphasis added.)

The action was tried as a civil action before the Hon. Lawrence K. Blanchard, acting Milwaukee county judge, sitting without a jury. On February 15, 1968, Judge Blanchard found Christopher guilty and fined him $1 and costs. Pursuant to sec. 299.30, Stats., Christopher took an appeal from this judgment to the circuit court for Milwaukee county. On July 23, 1968, Circuit Judge Herbert J. Steffes affirmed the judgment of the county court. Christopher then made a motion to the trial court for a new trial on the basis of newly discovered evidence. The motion was denied by Judge Blanchard on January 8, 1969. On March 26, 1969, Christopher filed a notice of appeal from the trial court's judgment and the circuit court's affirmance, with this court.

James D'Amato, Waukesha, for appellant.

John J. Fleming, City Atty., Theophilus C. Crockett, Asst. City Atty., Milwaukee, for respondent.

WILKIE, Justice.

Before considering this appeal on its merits it is necessary to dispose of an issue raised for the first time by the city at oral argument, namely: Was the appeal to this court timely?

This issue of the timeliness of the appeal cannot be raised by the city because the city, by participating in this appeal without raising an objection to its timeliness until oral argument stage, has waived such objection. ¹

Thus, we reach the issues raised on this appeal going to the merits of appellant's judgment of guilt.

Two issues are raised:

1. Was there sufficient evidence to establish appellant's guilt of drunkenness by clear, satisfactory and convincing evidence?

2. If not, was appellant still guilty of violating Milwaukee Ordinance 106--2 because of the abusive, vulgar and obscene language he used?

In City of Madison v. Geier, ² this court said:

'By sec. 299.30(5), Stats., the circuit court on an appeal in a municipal forfeiture action is granted the same power as this court under ch. 274, Stats., to review, affirm, reverse or modify the appealed judgment. In such an appeal the circuit court makes no finding of fact; hence, on this appeal this court begins where the appeal to the circuit court began, i.e., the finding of the trial court. In ordinance-violation cases sometimes called forfeiture actions as in other civil cases, unless the findings of the trial court are against the great weight and clear preponderance of the evidence they will not be set aside on appeal even though contrary findings might have been made with evidence in their support. * * * But, to apply the great weight and clear preponderance test a court's finding must at least to supported by evidence sufficient to meet the burden of proof for that type of case.' ³ (Citations omitted.)

In Geier, this court went on to establish that the standard of proof which was applicable to ordinance-violation cases was best expressed in terms of 'clear, satisfactory, and convincing evidence.'

The trial court in the instant case expressly recognized that this was the standard to be applied here and held that the city met this burden. Thus, our first inquiry must be into the question of whether the city did indeed meet the burden of clear, satisfactory and convincing evidence. If it did, then the further question becomes: Were the trial court's findings against the great weight and clear preponderance of the evidence? For the reasons set forth below, we conclude that, as to charge of drunkenness, the city did not meet this burden and thus the trial court's finding as to drunkenness was against the great weight and clear preponderance of the evidence.

At the time of his arrest, Christopher was residing with his parents in Milwaukee. During the evening of January 17, 1968, while at home with his father, Christopher drank two glasses of beer.

Later that evening, at about 9 p.m., Christopher left his home to go to a tavern located near the intersection of 16th and National on Milwaukee's south side. This tavern is a place where young people under the age of twenty-one are permitted to dance, but no one is permitted to drink alcoholic beverages without proper proof that he is over twenty-one. He arrived at the tavern at about 9:30 p.m. and spent the rest of the evening dancing and socializing. Christopher testified that he had nothing to drink while at the tavern other than one Coke. There was no testimony introduced to indicate that anyone saw Christopher drinking anything during this period.

The city's entire case is based on the testimony of two Milwaukee police officers.

Officer James Olson testified that at about 12:30 a.m. on the morning of January 18, 1968, he observed Christopher in the doorway to the tavern. Olson testified that he asked the defendant to leave and Christopher responded by saying that he was looking for a friend, and then left. Olson further testified that in this brief encounter there was nothing to indicate that Christopher was drunk at this time.

Forty-five minutes later, or about 1:15 a.m., while Olson was assisting in the arrest of some juveniles near the entrance to the tavern, he observed Christopher crossing National avenue heading for the tavern. According to Olson, Christopher was staggering 'swaying, clumsy, his legs looked like they were weak, he wasn't steady on them.'

Christopher then attempted to reenter the tavern. Olson told him to leave and according to Olson, defendant said: 'I don't have to, I'm not going to, I'm going to stay right here.' Olson again told defendant to leave and this time, according to Olson, defendant swore and mouthed obscenities at him. Then Olson arrested defendant for drunk and disorderly conduct.

Olson testified that prior to arresting Christopher he observed that defendant staggered and swayed; was unsure of his footing; his eyes were bloodshot; there was a strong odor of alcoholic beverage on his breath; that he slurred as he spoke; and that, in his opinion, Christopher was drunk at the time of arrest.

The other policeman, Officer Wojtycski, testified that he first observed defendant as Officer Olson was talking to him at the entranceway to the bar. Officer Wojtycski testified he was about two feet away from defendant at the time of his arrest and he observed that defendant was swaying and that his eyes were bloodshot. He was also of the opinion that defendant was drunk at the time of his arrest.

Officer Wojtycski did not testify to hearing Christopher swear or use obscene language.

After his arrest, Christopher was taken to the police station but was not given any of the usual drunk-determination tests except he was required to write the alphabet.

In defense, Christopher presented the testimony of Dr. James Hurley, a specialist with twenty-eight years' experience in the field of neuro-psychiatry. Dr. Hurley testified that he had examined the defendant on September 6, 1967, for an evaluation of neurological and emotional residuals defendant suffered as a consequence of an accident he was involved in on November 2, 1965. Dr. Hurley testified that defendant had sustained a severe head injury in the accident as a result of which he was hospitalized and comatose for about three weeks; that the defendant thereafter developed a psychotic reaction which necessitated his hospitalization for three or four weeks. Dr. Hurley was of the opinion:

'* * * that there was very definite marked evidence of brain damage as a consequence of this injury. There was intellectual impairment of ten or more points in the...