Clark v. State

• Citation: 214 N.W.2d 450,62 Wis.2d 194
• Decision Date: 05 February 1974
• Docket Number: No. S,S
• Parties: Richard CLARK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 129.
• Court: United States State Supreme Court of Wisconsin

Page 450

214 N.W.2d 450

62 Wis.2d 194

Richard CLARK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 129.

Supreme Court of Wisconsin.

Feb. 5, 1974.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

CONNOR T. HANSEN, Justice.

The following issues are presented on this review:

1. Whether the evidence was sufficient to establish that the defendant aided and abetted in the commission of the murder?

2. Whether the court lacked subject matter jurisdiction because the complaint and information failed to allege an offense?

3. Whether the trial court should have instructed the jury on a lesser but not included offense?

SUFFICIENCY OF EVIDENCE.

King, Wooten, and the defendant all testified at trial. The testimony of King and Wooten differed in some respects, and the testimony of the defendant contradicts much of the testimony of King and Wooten. As we review defendant's testimony, it appears to contain many inconsistencies and what might be described as self-proclaimed confusion. Also, the defendant's testimony at trial differed in several respects with a statement he had previously made to Detective Charles Dobbs, who also testified at trial.

It is apparent from examining the record that the jury believed the testimony of the witnesses presented on behalf of the State and did not believe the testimony of the defendant.

The State's case in this instance relied somewhat upon circumstantial evidence. Oftentimes circumstantial evidence is stronger and more satisfactory than direct evidence. Ball v. State (1973), 57 Wis.2d 653, 666, 205 N.W.2d 353; State v. Paegelow (1973), 56 Wis.2d 815, 821, 822, 202 N.W.2d 916. Intent is by its very nature rarely susceptible to proof by direct evidence.

In Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725, 728, this court explained as follows:

'. . . A criminal conviction can stand based in whole or in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence the inference which supports the finding is the one that must be adopted. Our review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules.'

It would serve no useful purpose to set forth the testimony of the parties in detail. However, the evidence is such that the jury could reasonably conclude and believe that the defendant knew Bizzle was looking for Pulliam and intended to kill him; that on the night of the incident the defendant supplied Bizzle with the murder weapon and ammunition, demonstrated its use to Bizzle and loaded the gun for him. There is also credible evidence from which a jury could reasonably conclude that the defendant lured the deceased into the car by telling him they were going to pull a job in the country where a farmer who did not believe in banks had $5,000 in a safe, and that the defendant supplied gasoline money for the automobile being used, and otherwise assisted Bizzle in murdering Pulliam. Furthermore, the defendant was concerned that his fingerprints would be found at the scene of the crime, and several days after the incident the gun was thrown into Lake michigan in an attempt to hide his involvement.

Sec. 939.05, Stats., provides in pertinent part as follows:

'Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

'(2) A person is concerned in the commission of the crime if he:

'(a) . . .; or

'(b) Intentionally aids and abets the commission of it; or

'(c) . . ..'

In State v. Nutley (1964), 24 Wis.2d 527, 554, 555, 129 N.W.2d 155, 167, certiorari denied 380 U.S. 918, 85 S.Ct. 912, 13 L.Ed.2d 803, it was explained:

'Under the terms of sec. 939.05(2)(b) and (c), Stats., a person may be vicariously liable for a substantive crime directly executed by another. Under the complicity theory of sec. 939.05(2)(b), a person is liable for the substantive crime committed by another if (1) he undertakes conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime, and further if (2) he consciously desires, or 'intends' that his conduct will yield such assistance. . . .'

There was sufficient credible evidence to support the verdict of the jury.

JURISDICTION.

No objection to the jurisdiction of the court was ever raised at trial. The information and complaint was never objected to, or in any way challenged until this case was brought before this court for review.

The complaint charged that the defendant was involved in the commission of the murder of a human being contrary to sec. 940.01 and sec. 939.05, Wisconsin Stats. The defendant pled not guilty and was bound over for trial after a preliminary examination.

In Pillsbury v. State (1966), 31 Wis.2d 87, 93, 142 N.W.2d 187, 191, this court explained as follows:

'. . . The filing of an information is not dependent jurisdictionally upon a valid complaint or preliminary examination. While sec. 955.18, Stats., gives a person accused of a felony a right to a preliminary examination unless he is a fugitive from justice, the omission of a preliminary examination does not invalidate an information unless the defendant moves to dismiss. The information is the accusatory pleading under our criminal system to which the defendant must plead and stand trial, but sec. 955.18 does not make it void for lack of a preliminary examination but only defective, a condition which is waived unless timely objected to.'

Also, in Waite v. State (1973), 57 Wis.2d 218, 226, 203 N.W.2d 719, 724, the court held that:

'. . . Defects in the complaint, arrest or search would not go to subject matter jurisdiction.' (Citing Galloway v. State (1966), 32 Wis.2d 414, 418, 419, 145 N.W.2d 761, 147 N.W.2d 542.)

Therefore, even assuming, but in no way inferring, that the complaint was defective, it would not have affected the court's subject matter jurisdiction.

The information in this case alleged that the defendant was feloniously involved in the commission of the murder of Troy Pulliam, a human being, contrary to the form of the statute, section 940.01 and section 939.05.

The defendant argues that no crime is alleged in this information and therefore subject matter jurisdiction never existed and the judgment is void.

In Waite v. State, supra, 57 Wis.2d at p. 226, 203 N.W.2d at 723, the court explained that '. . . Subject matter jurisdiction is the power of the court to determine the facts, apply the law and set the penalty.'

Also, in Pillsbury v. State, supra, 31 Wis.2d at p. 94, 142 N.W.2d at p. 191, it was explained as follows:

'. . . Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law. . . .'

(Cited with approval in State v. Chabonian (1972), 55 Wis.2d 723, 725, 201 N.W.2d 25, and State v. Weidner (1970), 47 Wis.2d 321, 324, 177 N.W.2d 69.)

Counsel for the defendant concedes that the defendant knew precisely what crime he was charged with having committed. This was a vigorously tried case, extending over several days of jury trial. At no time, either during trial or on review, does the defendant assert that he did not know the nature and cause of the accusation made against him, or that he was in any way prejudiced by the failure of the State to use the precise language of the statute in the information. After examining the record, we are convinced the defendant was fairly convicted by an impartial jury on the basis of sufficient credible evidence. While we are satisfied the rights of the defendant have not been prejudiced in any way, and he does not assert they have been, nonetheless, he seeks reversal of his conviction because of a technical defect in the information discovered by counsel appointed to review his conviction.

Sec. 971.26, Stats., provides as follows:

'971.26 Formal defects. No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.'

There is a more compelling reason for concluding that the court had subject matter jurisdiction. Sec. 971.35, Stats., provides:

'971.35 Murder and manslaughter. It is sufficient in an indictment or information for murder to charge that the defendant did feloniously and with intent to kill murder the deceased. In any indictment or information for manslaughter it is sufficient to charge that the defendant did feloniously slay the deceased.'

The defendant was charged with being a party to the crime of murder. In State v. Weidner, supra, 47 Wis.2d at p. 324, 177 N.W.2d at p. 71, the following statement from Corpus Juris Secundum was quoted with approval:

"Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action; and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs, the authority to hear and determine both...