Gray v. State

• Decision Date: 13 April 1943
• Citation: 9 N.W.2d 68,243 Wis. 57
• Parties: GRAY et al. v. STATE.
• Court: Wisconsin Supreme Court

243 Wis. 57

9 N.W.2d 68

GRAY et al.

v.STATE.

Supreme Court of Wisconsin.

April 13, 1943.

Writ of error to review a judgment of the Circuit Court for Fond du Lac County; C. F. Van Pelt, Judge.

Walter Gray and others were convicted of burglary in the nighttime, and they bring error. [By editorial staff.]

Affirmed.

The plaintiffs in error, hereinafter referred to as the “defendants,” were charged with and convicted of burglary of a dwelling in the nighttime, and on November 10, 1941, were each sentenced for an indeterminate term of three to eight years in the state prison at Waupun, Wisconsin. Defendants bring this writ of error to review the judgment and sentence. The material facts will be stated in the opinion.

James Murray, of Fond du Lac (James Murray, of Fond du Lac, of counsel), for plaintiffs in error.

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

MARTIN, Justice.

The dwelling of Edmund Feldner, located on highway 38, about three-fourths of a mile west of the village of Rosendale in the town of Fond du Lac, Fond du Lac county, Wisconsin, was burglarized on the night of June 19, 1941. Mr. Feldner and members of his family retired at about 8:30 p. m. When he retired his overalls and two suits of clothing were hanging on a hook in his bedroom. His winter overcoat was in a room next to his bedroom. When Mr. Feldner arose at 5:30 a. m. the following morning he noticed that his overalls, his two suits and overcoat were missing and that some of the rooms of his residence had been ransacked. He found his overalls and the vest and coat of one suit lying outside. One suit, the overcoat and trousers of the other suit were missing.

At about 1 a. m. on June 20, 1941, George Habeck, a truck driver, left the city of Fond du Lac for Ripon and Berlin via highway 38. When he reached a point on said highway about three-fourths of a mile west of Rosendale, in the immediate vicinity of the Feldner residence, he saw three negroes, whom he later identified as the defendants, with their car parked alongside the road. Defendants followed Habeck to Ripon. At Ripon they inquired of Habeck as to the direction to Fond du Lac. He gave them the proper direction, whereupon defendants left but did not go in the direction which had been given them. The facts here related took place between 1 and 2:30 a. m. on June 20th.

Defendants had a black LaSalle sedan bearing Illinois license plates. On June 20th, at about 6 p. m., Robert Shiels, a deputy sheriff of Fond du Lac county, was directed to investigate concerning a black sedan automobile bearing Illinois license plates, which was parked on highway 41, a few miles south of the city of Fond du Lac. Shiels found three negroes in the sedan automobile, which was headed towards Fond du Lac. He asked them where they were going. They said they were going to Chicago. He then requested that they open the rear compartment, or trunk, of the car, which they did. The officer found the articles of clothing which had been taken from the Feldner home the night before. Upon inquiry of the officer as to why they needed an overcoat, one replied that they were up on a fishing trip from Chicago and the nights got quite cold around Fond du Lac. The officer replied that he did not believe their statement. They then said they had won the clothing or bought it at a crap game alongside the road. They said that two Mexicans came along as they were parked and asked whether they would play craps; that after the game they purchased the overcoat from one of the Mexicans for $2.50. They made no reference to purchasing or winning the other articles of clothing.

The officer took the three negroes to the county jail and there separately questioned them the following day. Defendant Mangrum stated that they got to Fond du Lac at about 12:30 or 1 a. m. on June 20th. He later stated that they had left Milwaukee at 3 a. m. on June 20th. He told of shooting craps with a Mexican known as “Mexican Joe.” It appears that there was a person in Fond du Lac commonly known as “Mexican Joe.” Officer Shiels located Mexican Joe, brought him to the county jail, and confronted each of the defendants separately. They each denied knowing him, and Mexican Joe denied ever having seen any of the defendants. Feldner identified the clothing at the county jail as his, which had been taken from his residence on the night of June 19th. Habeck identified the defendants as the three negroes he saw, and the black sedan with the Illinois license plates as the car on the roadside near the Feldner residence between 1 and 2:30 a. m. on the night of June 19th. Defendants, when separately questioned at the county jail, made many conflicting statements as to how they came into possession of the stolen clothes; as to their purpose in coming to Fond du Lac; and as to the time of their arrival in Fond du Lac. They denied having been west of Fond du Lac and in the neighborhood of Rosendale.

To the information charging burglary of a dwelling in the nighttime with intent to commit larceny, defendants entered a plea of not guilty. The jury found defendants guilty in the manner and form as charged in the information. Defendants contend that the evidence did not establish beyond a reasonable doubt that the Feldner dwelling was burglarized in the nighttime. Sec. 353.32, Stats., defines the term “nighttime” as follows:

“The term ‘nighttime,’ when used in any statute, ordinance, indictment or information shall be construed to mean the time between one hour after the setting of the sun on one day and one hour before the rising of the same on the following day; and the time of sunset and sunrise shall be ascertained according to the mean solar time of the ninetieth meridian west from Greenwich, commonly known as central time, as given in any published almanac.”

Sunset on the evening of June 19th was at 7:39 p. m., and sunrise on the morning of June 20th was at 4:23 a. m. Thus, nighttime, within the meaning of the statute, on the night in question, was from 8:39 p. m., June 19th, to 3:23 a. m., June 20th. Defendants argue that since Feldner testified that he retired about 8:30 p. m. on June 19th, and that he arose at about 5:30 a. m. the following morning, his dwelling may have been burglarized either in the daytime or in the nighttime, and that therefore the state failed to establish that the crime had been committed in the nighttime as alleged in the information. It is definitely established that the crime was committed sometime between 8:30 p. m., June 19th, and 5:30 a. m., June 20th. The witness Habeck testified that he left the city of Fond du Lac at about 1 a. m. on June 20th. Rosendale is about eleven miles west of the city of Fond du Lac. According to Habeck's testimony, he would, with normal driving, have arrived at the place where he saw the three defendants and their parked car in the immediate vicinity of the Feldner residence at about 1:30 a. m. The circumstance of defendants having been seen in the immediate vicinity of the burglarized residence at the time fixed by Habeck, well warranted the jury in concluding that the burglary had been committed in the nighttime. See Simon v. State, 125 Wis. 439, 103 N.W. 1100;Winsky v. State, 126 Wis. 99, 105 N.W. 480, 481. In the latter case, referring to State v. Bancroft, 10 N.H. 105, it is said:

“There was no direct proof that the burglary was...