Le Fevre v. State

Decision Date18 May 1943
Citation242 Wis. 416,8 N.W.2d 288
PartiesLE FEVRE v. STATE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Error to review a judgment of the Circuit Court for Fond du Lac County; August C. Hoppmann, Circuit Judge presiding.

Reversed.

FOWLER, FRITZ, and BARLOW, JJ., dissenting.

The plaintiff in error, Frank B. Le Fevre, hereinafter referred to as the defendant,” was charged in the information with having:

“On the 31st day of January, 1941, at the town of Byron in said county (Fond du Lac), Frank B. Le Fevre did willfully, feloniously and of his malice aforethought, kill and murder one Joe Rookes, also known as Zios Rookes, contrary to the statutes in such case made and provided and against the peace and dignity of the state of Wisconsin.”

Upon the trial the jury found defendant guilty as charged. Defendant's several motions after verdict were denied, whereupon he was sentenced to imprisonment in the state prison at Waupun, Wisconsin, at hard labor for the remainder of his natural life. Defendant brings this writ to review the judgment of conviction and sentence. The material facts will be stated in the opinion.

J. E. O'Brien, of Fond du Lac, for plaintiff in error.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and S. Richard Heath, Dist. Atty., and L. J. Fellenz, Sr., Sp. Asst. Dist. Atty., both of Fond du Lac, for defendant in error.

MARTIN, Justice.

For a period of about five years continuously prior to January 31, 1941, Joe Rookes was the proprietor of a small restaurant located on the east side of south Main street in the city of Fond du Lac. He had several employees who worked in the restaurant. At 7:50 o'clock on the night of January 31, 1941, Rookes left his place of business and did not thereafter return. His body was found in Lake Winnebago near Black Wolf Point on November 1, 1941. On February 1, 1941, Anton Raasch went to what is known as Hobbs Woods to get wood. There he noticed in the snow a set of tire tracks which led from the traveled portion of the road toward a fence which enclosed the woods. About two feet north of the north tire track he found a large pool of blood and in this blood a bow, lens, and part of the nosebridge of a pair of eyeglasses. These were identified as having been made for Joe Rookes. Raasch found no footprints or other marks of any kind in the snow except the tire tracks.

On February 2, 1941, Bernard Barr found at the place where Raasch had shoveled the bloodstained snow additional parts of eyeglasses which were also identified as belonging to Rookes. On February 2 a group of boys, who had learned of Rookes' disappearance on the night of January 31 and of the finding of parts of his eyeglasses on February 1, went to Hobbs Woods to search for Rookes' body. In their search they found under a bridge in the vicinity of Hobbs Woods several spots of blood. Peter Frank, one of the boys, gathered up some of the bloodstained snow which was then frozen. He also took some of the bloodstained snow from the spot of the pool of blood found by Raasch. Both samples were later turned over to the police who sent them to the F. B. I. at Washington, D. C., for analysis. The F. B. I. bureau reported that the samples contained human blood. There were footprints in the snow leading down to where the blood spots were found under the bridge.

Dr. E. L. Tharinger, a pathological specialist, who made a complete postmortem, testified that death was caused by fracture of the skull, caused by a severe local, external violence to that particular portion of the skull; that the area fractured was from the ear almost to the middle line of the back of the skull; also, a skull fracture on the left side; that the bones of the forearms and hands were absent; that the right foot, including the bones of the ankle, and bones of the right leg were absent; that both bones of the left leg were fractured above the ankle; that nine or ten ribs on each side were fractured. Dr. Tharinger said he did not think that the fractures of the leg bones were caused by pounding on the rocks of the shore of Lake Winnebago, but that the ribs might have been fractured in that manner. He was not asked by either state or defense counsel whether the fractures of the skull could have been caused in that manner.

Dr. Florin testified that a blow of sufficient force to cause a fracture of the skull would cause both internal and external bleeding. There is no evidence of any bloodstains having been found on any part of the defendant's car, although the police officers, sometime between March 6 and March 20, 1941, had the car in their possession a couple of days, for the purpose of examining it to ascertain if there were any blood spots or stains on the car.

Mrs. Hazel Burke, an employee in Rookes' restaurant, testified that in the late afternoon of January 31 she asked Rookes whether he was going to listen to the Joe Louis-Red Burma fight that evening. She said Rookes replied that he didn't know if the fellow had a radio in his car; that she asked him who he meant and Rookes replied, “Frank who used to work for Candlish” (Defendant had worked for Candlish sometime prior to 1933); that Rookes said Frank had told him he had two sons old enough to join the army and he wanted them to go into the restaurant business at Beaver Dam so they would not enlist in the army (Defendant had three sons who, at the time of the trial in May, 1942, were sixteen, eighteen, and twenty years of age, respectively; not subject to draft at the time in question), that Frank was going to look at some used restaurant equipment that evening and that he was going along because he knew the value of such equipment and would see that Frank did not get gypped.

Mrs. Anna Mae Chase, an employee in the restaurant, testified that just before Rookes left the restaurant at about 10 minutes to 8 she heard him say, “There comes Frank now”; that he took his coat and hat and went out; that she watched Rookes go past the restaurant, saw him stop in the alleyway between the restaurant and the Legion Tavern next door; that Rookes then continued walking in a northerly direction on Main street; that she did not see him meet or talk to anyone after he left the restaurant. She further testified that at about 7:30 p. m. Rookes checked the cash in the register; that he left about $10 in the register to make change; that he then went into the back room where the safe was located; that she did not know whether he put any money in the safe or not; that when Rookes left the restaurant evenings he would usually return at about 9 or 9:30 o'clock; that on the night of January 31 he did not return; that she remained in the restaurant until about 3 o'clock the following morning, at which time her husband called for her; that she then called Harry Burke, who was also an employee in the restaurant, and told him that Rookes had not returned. Burke came to the restaurant to lock up. He found the safe open. He locked the safe, closed the restaurant, and returned home. Burke opened the restaurant at about 6 a. m. on February 1. He then unlocked the safe, found $69 in onedollar bills. About a week later the private box in the safe was opened and it contained $500 in currency, also Rookes' bank book.

Mr. Burke testified that on the evening of January 31, between 5 and 5:30, Rookes cashed two checks for Alvin Danner, a section foreman on the Soo line; that they were both Soo Railway Company checks, payable to the order of Mr. Danner, one for the sum of $49.16, and the other for $5.76; that when Rookes cashed the checks he put them with a roll of money in his pocket; that he had a large roll of money on his person; that Rookes, during the afternoon, had cashed two other checks, one for Earl McCumber, the other for a man named Sharples. The two checks which Rookes cashed for Danner were both dated December 31, 1940. They were both endorsed, Alvin Danner and F. B. Le Fevre.” “F. B.” are defendant's initials. The checks were not endorsed by Joe Rookes. They were both cashed by Le Fevre on February 1 at the First Fond du Lac National Bank.

In explanation of his possession of and cashing said checks, defendant testified that in the forenoon of February 1 as he was walking towards the Ahern Clothing Store to buy a pair of work gloves, which store is right next to the First Fond du Lac National Bank, a party known to him by the name of “Al,” who was in an automobile and appeared to be crippled, called to defendant and asked him if he would take the checks into the bank and bring him the cash; that he took the checks, went into the bank, endorsed them, returned to the automobile, and gave “Al” the proceeds of the two checks; that the bank clerk who waited on him had known him for a number of years.

Alvin Danner, to whom the checks were made payable, testified that he cashed them at Rookes' restaurant at about 5:30 the evening of January 31; that Rookes took a large roll of money out of his pocket, gave him the cash, then wrapped the checks around the roll of money, put a rubber band around it, and put it back in his pocket.

John F. Tyrrell, expert examiner of questioned documents, testified that the two checks (exhibits 12 and 13) were made by the same person and with the same ink; that he believed that the endorsements were made with different pens. He said that the endorsement on exhibit 12 was better formed than the endorsement on exhibit 13; that the endorsement on exhibit 13 was a coarser line than on exhibit 12. Mr. Tyrrell's analysis was based on pens sent to him on or about November 17, 1941. These pens were taken from the counter at the bank after several days use. One was slightly more used than the other. They were both Estabrook pens but of different numbers. The two pens offered and received in evidence on the trial as exhibits 30 and 31 were samples of the two kinds of Estabrook pens. They were not, however, the same pens that Tyrrell was given to...

To continue reading

Request your trial
43 cases
  • People v. Barbara
    • United States
    • Michigan Supreme Court
    • 13 Junio 1977
    ...the reliability of polygraph results and therefore should not lead to any deviation from the exclusionary policy."); LeFevre v. State, 242 Wis. 416, 8 N.W.2d 288, 292 (1943); People v. Zazzetta, 27 Ill.2d 302, 189 N.E.2d 260, 264 (1963) ("(W)e think it manifestly unfair to bind him (defenda......
  • State v. Dean
    • United States
    • Wisconsin Supreme Court
    • 6 Julio 1981
    ...will overbalance whatever utility it may be assumed to have." Bohner, supra, 210 Wis. at 658, 246 N.W. 314. Ten years later in LeFevre v. State, 242 Wis. 416, 425, 8 Wis.2d 288 (1943), we held that even though the parties had entered into a stipulation for the admission of polygraph evidenc......
  • State v. Cole
    • United States
    • Missouri Supreme Court
    • 11 Junio 1945
    ...v. Jones, 341 Pa. 541, 19 A.2d 389; People v. Becker, 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171, 1174, note; LeFevre v. State, 242 Wis. 416, 8 N.W.2d 288, 292(1); State v. Dehart, 242 Wis. 562, 8 N.W.2d 360, 362(2), Bruner v. People, 113 Colo. 194, 156 P.2d 111, 118-120. --------- ...
  • People v. Monigan
    • United States
    • United States Appellate Court of Illinois
    • 21 Mayo 1979
    ...Mich.App. 491, 234 N.W.2d 669; Fulton v. State, 541 P.2d 871 (Okla.Crim.); Lewis v. State, 500 S.W.2d 167 (Tex.Cr.App.); LeFevre v. State, 242 Wis. 416, 8 N.W.2d 288; Annot., 53 A.L.R.3d 1005 We generally agree that a party may, by stipulation, waive the necessity of proof of any part or al......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT