La Fond v. State

• Decision Date: 28 November 1967
• Parties: Michael LA FOND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 304

154 N.W.2d 304

37 Wis.2d 137

Michael LA FOND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Nov. 28, 1967.

Rehearing Denied Jan. 30, 1968.

Error to review a judgment of the Circuit Court for Milwaukee County: David V. Jennings, Jr., County Judge of Milwaukee County, Presiding.

Motion for Rehearing Denied, without Costs, on January 30, 1968. See 156 N.W.2d 162.

For the plaintiff in error there were briefs and oral argument by Francis J. Demet of Milwaukee.

For the defendant in error the cause was argued by E. Michael McCann, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O'Connell, district attorney.

J. Heffernan, J. Mr. Justice Wilkie joins me in this Dissent.

Hansen J.,

April 18, 1967, the plaintiff in error (defendant) was prosecuted for an alleged violation of sec. 944.10 (1), Stats., sexual intercourse with a child. A jury trial was waived and the defendant was ultimately found guilty of contributing to the delinquency of a child contrary to sec. 947.15 (1) (a).

The procedure followed by the trial court after the evidence had been presented produces this appeal and the details thereof will be considered in the opinion.

The defendant was twenty years of age and the prosecutrix was sixteen years of age. The defendant admitted harboring the minor girl in his apartment for several days knowing that she had run away from home, and that she had been reported to the police as a missing person.

After defendant had been convicted of the charge of contributing to the delinquency of a minor, counsel for the defendant informed the court that the defendant was to appear before branch 12 of the circuit court for Milwaukee for a probation violation. This information was presented to the trial court in the morning and the matter of imposing the sentence was thereupon adjourned until the afternoon.

The defendant appeared in branch 12 of the circuit court, his probation was revoked and he was sentenced to a term of five years in the state reformatory at Green Bay. In the afternoon, he appeared before the trial court for sentence on the charge of contributing to the delinquency of a minor and was sentenced to a term of one year in the state reformatory to run concurrently with the five-year sentence imposed earlier in the day.

The issue on appeal is whether the trial court committed error by amending the charge to one of contributing to the delinquency of a child in violation of sec. 947.15 (1) (a), Stats., after the evidence had been concluded, and thereupon finding the defendant guilty of said offense.

The defendant contends that the trial court found the defendant not guilty of the felony charge and that it was error to then amend the felony charge to a misdemeanor charge.

An examination of the record leads us to conclude that it does not support the position of the defendant. The trial occupied two days and at the Conclusion of the trial, the trial court made a lengthy statement, from the bench, which is set forth in two and one-half pages in the transcript. In this pronouncement, the trial Judge expresses considerable dissatisfaction with the evidence as presented, including the hostility of the prosecutrix while a witness. Included in this statement by the court is the following, ". . . that doubt must be resolved in favor of the defendant, and the court unfortunately, with great reluctance, is going to have to find the defendant not guilty of the charge of sexual intercourse with a child." The trial court then continues and finally concludes, ". . . Mr. Neubecker (counsel for defendant), I have no alternative, however, particularly on the testimony as corroborated by your client, I must find him guilty of contributing to the delinquency of a minor.It's a prima facie case; it certainly is well within the charge of sexual intercourse with a child."

Upon the Conclusion of the statement above referred to, counsel for defendant requested permission to approach the bench with the state's attorney. The Discussion between the trial Judge and the respective counsel is unreported.

The trial Judge then proceeded to render his decision, as follows:

"Further, based upon the testimony here, the court does amend the charge and does find, as stated, the defendant guilty of the charge of contributing to the delinquency of a minor."

Later in the day when the defendant was before the court for sentencing, both counsel had an opportunity to be heard. The state's attorney recommended a sentence of one year to the state reformatory, to run concurrently with the five-year sentence imposed in branch 12 of the circuit court, and counsel for the defendant stated that he appreciated the district attorney's recommendation. Then, when the court asked counsel for the defendant if he wished to be heard, he responded:

"Well, your Honor, in view of the recommendation of the district attorney that sentence be imposed and that it run concurrent to the sentence imposed by Judge Coffey, I would only say that I agree with the recommendation; I think this would be a fair sentence."

The court then proceeded to pronounce sentence.

A careful examination of the record reflects that at no time during the entire proceedings after the evidence had been completed did defendant interpose any objection of any nature whatsoever. The record in the trial court does not disclose that any error was alleged or objection made because of any element of unfairness, surprise at the amendment to the charge, lack of knowledge as to details or specifics of the charge or prejudice of any nature whatever or for any reason whatsoever. If an error was committed in the instant proceeding, it is deemed to have been waived by the failure to make timely objections. Ferry v. State (1954), 266 Wis. 508, 63 N.W. 2d 741; State v. Vinson (1955), 269 Wis. 305, 68 N.W.2d 712, 70 N.W.2d 1; Bridges v. State (1945), 247 Wis. 350, 357, 19 N.W.2d 529, 19 N.W.2d 862. Not only is there a complete absence of any objection, but on the contrary the record indicates complete acquiescence and agreement.

The defendant also urges that the action of the trial court placed the defendant in double jeopardy. This assertion is not correct. Also the misdemeanor crime of contributing to the delinquency of a minor (sec. 947.15 (1) (a), Stats.) is not an included crime within the felony charge of sexual intercourse with a child, sec. 944.10 (1).

Sec. 939.66, Stats., defines an included crime:

" Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

"(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged."

In this case, the misdemeanor charge, sec. 947.15 (1) (a), Stats., requires proof of an additional fact, i.e., the age of the defendant. Sec. 944.10 (1) applies to "any male," whereas sec. 947.15 (1) (a) applies to "any person 18 or older." Thus it would be possible for a seventeen-year-old male to violate sec. 944.10 (1) by having sexual relations with a child, but impossible for him to contribute to the delinquency of a minor, since he was not of the applicable statutory age. This would be consistent with the jurisdictional provisions of the Children's Code, ch. 48. The juvenile court would have exclusive jurisdiction if the child were under sixteen years of age; however, if the child was between sixteen and eighteen years of age, the juvenile court Judge could waive jurisdiction for an alleged violation of the felony charge, sec. 944.10 (1), and he could be tried in a criminal court. However, because of the statutory eighteen-year-age requirement, a seventeen-year-old child could not under any circumstances be prosecuted for contributing to the delinquency of a minor, sec. 947.15 (1) (a). See secs. 48.12 and 48.18.

Sec. 944.10 (1), Stats., requires proof of an additional fact which sec. 947.15 (1) (a) does not require, i.e., the act of sexual intercourse; while sec. 947.15 (1) (a) requires proof of an additional fact which sec. 944.10 (1) does not require, i.e., the fact that the defendant was a person "18 or older."

Therefore, the defendant was not placed in double jeopardy since the instant...