Embry v. State

• Decision Date: 03 March 1970
• Docket Number: Nos. S,s. S
• Citation: 174 N.W.2d 521,46 Wis.2d 151
• Parties: Jewel EMBRY, alias James Heller, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 105, 106.
• Court: Wisconsin Supreme Court

Page 521

174 N.W.2d 521

46 Wis.2d 151

Jewel EMBRY, alias James Heller, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Nos. State 105, 106.

Supreme Court of Wisconsin.

March 3, 1970.

The plaintiff in error Jewel Embry was charged with forgery, i.e., using a Standard Oil Company credit card purportedly issued to Edward F. Bumba to obtain merchandise with intent to defraud in violation of sec. 943.38, Stats., and on March 29, 1968, was found guilty by a jury. The court sentenced him to an indeterminate term of seven years in the state prison. A motion for a new trial was heard and denied. Writs of error seek a review of the judgment of conviction and sentencing and the order denying a new trial.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, Lawrence W. Durning, Dist. Atty., of Eau Claire County, Eau Claire, for defendant in error.

HALLOWS, Chief Justice.

In October of 1967 Embry and Billie Whitlatch agreed to use a credit card purportedly issued to Edward F. Bumba for the purpose of making purchases of various goods from Standard Oil service stations and dividing the merchandise or selling it and dividing the profits. In December, 1967, they decided to come to Wisconsin for such 'business' purpose. At the time Whitlatch had a 1967 Chevrolet station wagon which he had rented at the O'Hare International Airport in Chicago. To make the trip, Whitlatch rented a Pontiac from the same agency and charged it to the Bumba credit card. Embry and Whitlatch each drove one of the cars from Chicago to Portage, Wisconsin, where a U-Haul trailer was rented by Whitlatch by use of the Bumba credit card. A number of purchases were made in and between the Portage area and Eau Claire at Standard Oil stations with the Bumba credit card. Whitlatch used the Chevrolet while making the purchases. The items were later transferred to the Pontiac and trailer driven by Embry. Three purchases were made in Eau Claire with the Bumba credit card. The complaint involves a purchase of six cans of starting fluid made at the Standard Oil service station owned by Harold Mueller.

After making the purchases in Eau Claire, Embry and Whitlatch stopped at a motel where Whitlatch registered as Edward Bumba, again using the credit card. The Chevrolet and the Pontiac and trailer were left in separate parts of the motel parking lot. About this time the police were informed of the fraudulent use of the Bumba credit card and were alerted to be on the lookout for the Chevrolet station wagon. An Eau Claire police officer located the vehicle at the motel, learned of the presence of Embry and Whitlatch in room 102, and with assistance arrested the two men about 9:00 o'clock p.m. on Thursday, December 14, 1967.

The following day Whitlatch gave the police written consent to search the Pontiac and trailer and the cans of starting fluid were found in the Pontiac. Whitlatch negotiated a plea of guilty to two offenses involving the use of the Bumba credit card and was sentenced to the state prison. After he was granted a transactional immunity under sec. 885.34, Stats., he testified as a state witness at Embry's trial.

The first assignment of error involves the sufficiency of the evidence to support the jury's finding of guilty. At the trial, Mueller testified he sold the six cans of starting fluid to Embry. Whitlatch, however, testified that he made the purchase at the Mueller station with the credit card and Embry was a block and a half down the street in the parked Pontiac. The trial court, pursuant to sec. 939.05, Stats., instructed the jury that one who aids and abets the commission of a crime or is a party to a conspiracy with another to commit a crime can be charged and convicted as a principal. We think the evidence was sufficient to convince a jury beyond a reasonable doubt that Embry and Whitlatch had an arrangement whereby they used the Bumba credit card to make purchases and committed the crime of forgery. In respect to the Mueller purchases, Embry aided and abetted and could, therefore, be charged and convicted as a principal although he did not make the purchases. Carter v. State (1965), 27 Wis.2d 451, 134 N.W.2d 444, rehearing denied 27 Wis.2d 451, 136 N.W.2d 561, certiorari denied 383 U.S. 948, 86 S.Ct. 1206, 16 L.Ed. 211, certiorari denied 389 U.S. 867, 88 S.Ct. 137, 19 L.Ed.2d 141; State v. Nutley (1964), 24 Wis.2d 527, 129 N.W.2d 155.

But, counsel for Embry insists that the evidence is insufficient because the two chief witnesses for the state gave directly conflicting testimony of who made the credit-card purchase and such conflicting testimony on the material point of identification renders both versions incredible as a matter of law. We disagree that such is the effect of conflicting testimony by witnesses whether they are for the prosecution or the defense.

The case of State v. Stevens (1964), 26 Wis.2d 451, 463, 132 N.W.2d 502, relied on by Embry is not authority for that proposition. In Stevens there was a contradiction in testimony between the defendant's witnesses and the state's witnesses. The rule was stated to be that the determination of the credibility of the witnesses and the weight to be accorded their conflicting testimony were properly a function of the jury. It may be in some circumstances conflicting testimony given by a witness renders him as a matter of law unworthy of belief but generally credibility is a question of fact. In Mandella v. State (1947), 251 Wis. 502, 514, 29 N.W.2d 723, the testimony of a witness for the state was so inconsistent and contradictory as to render him untrustworthy, but because he was an eye witness to the crime it was held a jury could believe and accept such parts of his testimony as it found to be most credible.

In O'Neil v. State (1941), 237 Wis. 391, 396--398, 296 N.W. 96, 135 A.L.R. 719, this court did not hold that contradictory testimony of the different witnesses for the state necessarily cancelled the testimony and rendered it unfit as a basis for a conviction. Inconsistent testimony of two arresting officers was presented in Galloway v. State (1966), 32 Wis.2d 414, 421, 145 N.W.2d 761, and there is some language in the case deprecating the importance of the inconsistency. However, Galloway did not hold expressly or by implication that as a matter of law inconsistent statements on a material issue by witnesses of one party to a lawsuit rendered the testimony of both witnesses incredible. Allowing the jury to accept or reject the inconsistent testimony even under the beyond-a-reasonable-doubt burden of proof is a more salutary rule. The prosecution in a criminal case is limited in its choice of what testimony it will not use against an accused.

The next assigned error involves the question of whether the trial court sentenced Embry for several crimes under the guise of sentencing him for the one crime of which he was convicted. The argument rests upon perhaps the unfortunate statement of the trial court in referring to crimes that 'you aren't being sentenced for one.' But this reference taken in context indicates the trial court was considering the nature of the crime and the pattern of conduct in order to evaluate what the sentence should be. In sentencing, a trial judge must consider the nature of the crime, the character of the accused, and the rights of the public. ¹ In determining the character of the accused and the need for incarceration and his rehabilitation, the court must consider the nature of the crime and whether it is an isolated act or a pattern of conduct. In considering other crimes for such purpose, it is the weight of authority that the sentencing judge can take such offenses into consideration to determine the sentence for the crime in question. See Annot. (1964), Court's right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant, 96 A.L.R.2d 768.

This procedure must be distinguished from a practice in this state, especially in Milwaukee, of charging a multiple offender with two or more offenses for which the evidence is most conclusive and bringing the judge's attention to additional uncharged offenses prior to sentencing. Upon agreement between the state and the accused, the judge may take these offenses into consideration and the prosecution agrees not to prosecute. It is expected the uncharged crimes will influence the length of the sentence for the crime or crimes the defendant has been found guilty of or to which he has plead guilty. The advantage of this technique to the accused is that he can clean his slate of several uncharged crimes with the safety of only receiving at the most the maximum sentence on the one or two crimes of which he is convicted. See Dawson, Sentencing: The Decision As To Type, Length, And Conditions of Sentence, p. 209, The Administration of Criminal Justice series. This procedure is also to be distinguished from consolidating pending charges in several counties in one county under sec. 956.01, Stats.

The presentence investigation report ² consisted of a list of other convictions or arrests for perjury, mail theft, forgery, con games, obtaining merchandise under false pretenses, crime against nature, theft and deceptive practices. Forgery carries a maximum sentence of 10 years, but the trial court sentenced Embry to an indeterminate term of not more than seven years. In reviewing the sentence under the authority recognized in State v. Tuttle (1963), 21 Wis.2d 147, 124 N.W.2d 9, and in Jung v. State (1966), 32 Wis.2d 541, 547, 145 N.W.2d 684, we do not find that such sentence was excessive or included any penalty or punishment for other crimes.

While the brief of Embry raises the question of whether the court erred in granting transactional immunity under sec. 885.34, Stats., on oral argument it was conceded that there was no error; therefore, we do not...