Hawpetoss v. State
| Decision Date | 25 June 1971 |
| Docket Number | No. S,S |
| Citation | 187 N.W.2d 823,52 Wis.2d 71 |
| Parties | Peter J. HAWPETOSS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 165. |
| Court | Wisconsin Supreme Court |
On November 10, 1969, after a trial to the court without a jury, the plaintiff in error, Peter J. Hawpetoss (hereinafter defendant), was found guilty of theft from the person (sec. 943.20(1)(a) and (3)(d) 2, Stats.), and of operating a motor vehicle without the owner's consent (sec. 943.23). He was sentenced to not more than four years in the state prison on each count, with the sentences to run consecutively.
The complaint in this matter charged defendant and a co-defendant with taking a wrist watch, a ring, and a wallet containing $250 in cash from the person of one Stanley Selvent, and also with taking and driving a 1969 Oldsmobile owned by Selvent without his consent. As to the first charge, the trial court found that the defendant had taken the watch and that its value was $10.
At the trial, Stanley Selvent testified that on the morning of September 12, 1969, as he was driving to Milwaukee County Hospital to have a prescription filled, he was stopped by Virginia La Ronge (the co-defendant), who told him that her mother had 'thrown her out' of the house and that she was going to rent another apartment. She said she wanted to get something to eat and then she, the defendant Hawpetoss, and one Darlene LeRoy got into his car. The four of them went for a ride, bought some tomatoes from a farmer, stopped to purchase a six-pack of beer and a bottle of brandy, and then went to an apartment which the defendant Hawpetoss said he was going to rent. The defendant Hawpetoss signed the application for the apartment and, at La Ronge's request, Selvent paid a $50 deposit.
The four of them then went up to the apartment shortly before five p.m. Selvent then had one can of beer, one shot of brandy, and a bottle of soda water given to him by La Ronge, and then 'passed out' on the couch. He awoke at about eight o'clock that evening and found himself in the bathtub at the apartment. He then discovered that his wallet, ring, wristwatch, and car keys were missing, and upon investigating he also discovered that his car was gone. He stated that the only alcohol he had consumed that day consisted of two cans of beer and one shot of brandy.
The defendant testified that when they went for the ride, Selvent stopped at a tavern where he purchased a six-pack of beer and a bottle of brandy which he drank in the car during the ride. After returning and renting the apartment they went to another tavern where Selvent drank more brandy. When they returned to the apartment they all continued drinking, and Darlene LeRoy kept 'feeding' Selvent drinks from a quart bottle of brandy. After a while Selvent became very drunk and Darlene LeRoy 'rolled' him, removing his watch and other items from his person. She placed the watch on the coffee table and later, when defendant and La Ronge left the apartment to look for Darlene LeRoy who supposedly had gone out to get some glasses, La Ronge picked up the watch and gave it to the defendant who took it and later pawned it at a tavern in northern Wisconsin, where he and La Ronge had driven in Selvent's car.
Virginia La Ronge testified to substantially the same facts as defendant, and agreed with his testimony that it was Darlene LeRoy's idea to rent the apartment, not hers.
On August 24, 1970, the court denied the defendant's postconviction motion to have the conviction of theft from the person set aside, and also denied a motion for a new trial. The court did, however, by its order of August 24, 1970, revise the sentences so that they were to run concurrently rather than consecutively.
The defendant in no way challenges the conviction for operating a motor vehicle without the owner's consent in this proceeding but does seek a review of the conviction of theft from the person and the order denying the motion to set it aside, or a new trial.
Harry F. Peck, Hayes, Peck, Perry & Gerlach, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz, and Thomas J. Balistreri, Asst. Attys. Gen., Madison, E. Michael McCann, Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.
The sole issue presented on this appeal is whether there was sufficient credible evidence to support the defendant's conviction on the charge of theft from a person.
The defendant was charged with a violation of sec. 943.20(1)(a) and (3)(d) 2, Stats.
Sec. 943.20, Stats., provides in part as follows:
'(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property.
'* * *
'(a) If the value of the property does not exceed $100, a fine of not more than $200 or imprisonment for not more than 6 months or both.
'* * *
'(d) If the value of the property is less than $2,500 and any of the following circumstances exist, a fine of not more than $5,000 or imprisonment for not more than 5 years or both:
'* * *
The defendant does not dispute that he was guilty of the crime of theft. He concedes tha he could be found guilty of the theft of a watch valued at $10. He does argue, however, that the evidence did not establish beyond a reasonable doubt that he was guilty of theft from the person so as to justify a substantially increased penalty pursuant to sec. 943.20(3)(d) 2, Stats. Both the state and the defendant have taken the position that if this conviction is to be sustained it must be based upon a determination that the defendant was a party to a crime pursuant to sec. 939.05, either on a theory of conspiracy or on a theory of complicity, i.e., aiding and abetting.
Sec. 939.05, Stats., provides:
'(2) A person is concerned in the commission of the crime if he:
'(a) Directly commits the crime; or
'(b) Intentionally aids and abets the commission of it; or
To constitute the offense of larceny from the person, not only must property be taken from the person of another but it must also be carried away or handled in one of the other manners prescribed by the statute with the requisite intent. In this case, Darlene LeRoy executed the first element by removing the watch from the person of Selvent. At this point it seems questionable whether it could be said that the offense had been committed since the element of asportation was absent. That element was ultimately accomplished by the defendant. Therefore it appears that neither one may actually be said to have executed the entire substantive crime of theft from the person for which the other may be held vicariously liable.
Within the general definition of a party to an offense is a person who is concerned in its commission in some affirmative manner. Aiding in the commission of an offense may include the performance of some act which forms a part of the offense. It is stated at 22 C.J.S. Criminal Law § 79, pp. 237, 238, that:
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