Curl v. State

• Decision Date: 29 October 1968
• Citation: 40 Wis.2d 474,162 N.W.2d 77
• Parties: Delbert Clay CURL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 77

162 N.W.2d 77

40 Wis.2d 474

Delbert Clay CURL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Oct. 29, 1968.

Rehearing Denied Jan. 7, 1969.

Ralph J. Huiras, Port Washington, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Walter J. Swietlik, Dist. Atty., Ozaukee Co., Port Washington, for defendant in error.

ROBERT W. HANSEN, Justice.

This is a shotgun blast type of appeal, asserting nearly a dozen reasons for reversing the judgment of the trial court. The reasons given vary greatly in size. Some seem minor in nature. Some have greater thrust and raise issues of consequence. Each will be dealt with, birdshot to buckshot, in order of their importance as they appear to us.

REPEATED INSTRUCTION

Defendant complains that a portion of the instructions were repeated to the jury. In appears that after the jury had retired to consider its verdict, it sought reinstruction on 'whether the party involved had an intent to use the gun if

                for the reason the gun was found in the area.  I mean does this constitute an intent to use it according to the statutes.'  Answering the jury's question, the trial court read again the statutory sections under which the defendant was charged and repeated his earlier instruction that 'armed means furnished or equipped with a weapon (sic) offense or defense.'  Reinstruction of a jury is a matter of sound discretion of [40 Wis.2d 479] the trial court.  1  What the trial court elected to do was entirely proper.  If he had answered more briefly that intent to use the gun was not a necessary element of the crime charged, the defendant would hardly have benefited by the briefer answer.  The method of answering chosen by the trial court gives the defendant no reason to complain
                

THE TELEPHONE CALL

On the trial of the insanity issue, the defendant took the stand in his own behalf. On cross-examination he was asked whether he had told either the jailer or anyone on the telephone that he was going to put on a show for the jury. He answered in the negative. Sergeant Gary S. Langlois of the Ozaukee county sheriff's department later testified that he and the jailer took the defendant from his cell to a room with a telephone and that, in their presence, during the course of the telephone conversation he said: 'I will put on a show for the jury. I will let them know what a sanity hearing is.' Defendant objected but the trial court overruled the objection on the ground that it was proper impeachment. The testimony concerning a conversation, knowingly conducted by defendant in the presence of two officers, was clearly admissible because it impeached the credibility of defendant by showing a prior statement inconsistent with his sworn testimony. ²

INSTRUCTION ON 'WHILE ARMED'

Defendant objects now to the following instruction given by the trial court:

'The fourth element of this offense requires that the defendant entered such building while armed with a danagerous weapon. 'Armed' means furnished or equipped with a weapon of offense or defense. The Criminal Code of Wisconsin defines 'dangerous weapon' as any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm.'

The instruction given is a proper one. Equally obvious is the incorrectness of the instruction proposed by the defense at the time of trial, to-wit: 'Armed means equipped with a weapon of offense or defense and must be displayed or referred to by the accused in connection with the crime charged.' Under such definition only the member of the bank holdup gang who brandished the pistol could be charged with armed robbery. ³ In any event, the defense in no way objected to the instruction given

when it was given, and the right to object now has been waived. ⁴

INTENT AND INTOXICATION

Defendant at the trial claimed that he could not form the intent necessary to commit the crime because of his intoxicated and drugged condition. The defendant's counsel in his brief fairly summarizes the evidence, pro and con, on this point as follows: FOR THE DEFENSE: Defendant testified that he passed out at 10 p.m. that evening and remembered nothing until he woke up on the floor. Defense witnesses testified that defendant was drunk or befuddled at noon, early in the afternoon and between 8:00 and 9:00 p.m. on the evening of the safecracking. FOR THE STATE: Sgt. Rudolph testified that when he ordered defendant out from under the jeep, defendant said, 'Don't shoot, I am unarmed, I will come out.'; and that defendant did not appear excited or nervous; that he did not stagger and did not appear to be in a stupor. Officer Cooper testified that defendant at the scene did not appear too excited, nervous or in a stupor. Another state witness testified that defendant, when brought to the jail, was steady on his feet, slightly nervous, uncommunicative, did not smell strange or odd. Defense counsel in his brief asks how the defendant could be so drunk from liquor and drugs at 9:30 p.m. yet be sober enough at 2:15 or 2:30 the next morning, four or four and one-half hours later, to form an intent to commit a burglary or a burglary while armed. Whether or not intoxication (not a hangover, but a holdover) continued for the period of time involved was for the jury to decide. The credibility of witnesses was for the jury to determine. ⁵ Clearly, there was credible evidence that the jury found convincing that the defendant was in the possession of all his faculties at the time the safe was burglarized.

GUN IN THE SUITCASE

Defendant argues that the trial court should not have admitted into evidence a suitcase containing tools, a loaded gun and fruits of the crime. The suitcase or satchel in question was lying open a foot or a foot and one-half from the tipped over safe. It contained burglary tools, a loaded revolver and certain property which had been stolen from the safe. Other tools were lying on the floor near it. The state contends that the suitcase was found at the scene of the crime and the various items in it constituted circumstantial evidence which was admissible to prove various elements of the crime. We agree. Along with the evidence that the doors had been jimmied and the premises forcibly entered, the burglar tools relate to the element of intentional entry to burglarize. The gun relates to the element of entry 'while armed with a dangerous weapon.' The items in the satchel such as the notary seal and coin box taken from the safe relate to the element of entry 'with intent to steal.' Defendant's brief appears to assert that, unless someone observed the burglars entering the building, suitcase in hand, all evidence in reference to the suitcase must be excluded. It is rare enough that safecrackers are interrupted by the police while emptying the safe. It would be rare indeed that they would also have been observed earlier carrying their tools to do the job. The test of admissibility of circumstantial evidence is not that narrow. Evidence of guilt at the scene of the crime need not be held in the hand

                of the criminal suspect.  6  'Possession' may be constructive possession, meaning that the item is immediately available and under the control of the persons charged with the crime.  Also, [40 Wis.2d 483] where a proper foundation has been laid to establish the joint participation of several persons in an undertaking, possession may be joint.  7  Under the facts and circumstances here presented, we hold that the suitcase and contents, including the tools, loaded revolver and stolen property, were properly admitted into evidence because they constituted circumstantial evidence relating to essential elements of the crime charged
                

EARLIER HOSPITALIZATIONS

Defendant contends strenuously that it was error for the trial court to refuse to admit evidence on the issue of guilt that the defendant had been earlier treated at mental hospitals in Idaho and Wisconsin. In this case the defendant demanded and received a bifurcated or split trial separating the determination of guilt and the determination of sanity at the time of the offense. On the trial of the issue of insanity, defendant was allowed to testify about his prior hospitalizations in treatment facilities for the mentally ill. On the trial of the issue of guilt, he was not permitted to testify as to such earlier hospitalizations but was permitted to testify that on the day of the safecracking he had consumed 17 ounces of whiskey, 4 ounces of cough syrup, 12 Librium pills and 16 Darvon pills. Two doctors called by the defense answered hypothetical questions to state that a person who had consumed such amount of alcohol and drugs would have been intoxicated and incapable of forming the intent required for the commission of the crime of armed burglary at the time the crime was committed.

The defense's offer of proof on the 'guilt' portion of the trial with respect to his hospitalization was (1) as to the defendant having been in a mental hospital in Idaho in 1960 and then being diagnosed as a paranoid schizophrenic and (2) as to defendant being in a mental treatment facility in Wisconsin from March, 1961 to July, 1963 with the drug, Librium, being prescribed for him. The narrow question presented is whether such earlier hospitalizations, material on the issue of insanity, were also material on the issues of intoxication and intent. We agree with the trial court that they were not. Both are earlier episodes in the life of the defendant, remote in time, that cannot be given continuing significance on the issue of defendant's intent or intoxication on the date of the offense. To bifurcate a trial is to separate completely the issue of lack of accountability due to insanity from the issue of whether the crime was committed. If the testimony of earlier hospitalizations and mental condition at such earlier times is also...