Herde v. State

• Decision Date: 07 January 1941
• Parties: HERDE v. STATE.
• Court: Wisconsin Supreme Court

236 Wis. 408

295 N.W. 684

HERDE

v.STATE.

Supreme Court of Wisconsin.

Jan. 7, 1941.

Error to Circuit Court, Rock County; Jesse Earle, Judge.

Affirmed.

Roy Herde was informed against May 26, 1939. Convicted of murder in the first degree, he brings writ of error to review the judgment against him.

The defendant Roy Herde, 19, and one Arnold Putnam, 24, were tried together, but separate verdicts were rendered as to each. They had become acquainted at a Civilian Conservation Corps camp near Minocqua, Wisconsin, where both were enrolled in the winter of 1938 and 1939. Putnam left the camp on April 21, 1939, and Herde followed in May. By arrangement they met at a nearby summer resort, pooled their winter's wages which totaled $300, and set out together on May 15 for Crandon where three revolvers and ammunition were purchased. They went to Green Bay, to Menasha and then to Milwaukee dissipating their money on a drinking spree. Herde and Putnam held up a man and woman at West Allis about 12:30 a. m. on May 20, 1939, took them into the country where they took money from them and left the pair to walk home. The defendants drove to a place near Whitewater where they remained in hiding until late in the afternoon of that day when they drove through Janesville to the Village of Afton where the fatal shooting occurred.

Entering a store in Afton about 8:30 p. m., the defendants pointed their guns at the proprietor Charles Rineheimer and a customer, and Putnam took about $3 from Rineheimer. Herde threatened to shoot if he and his companion were followed. A girl approaching the store had seen what transpired inside and had warned people across the street. Vernon Rineheimer, brother of Charles, and one Cordes rushed toward the store as the defendants emerged, and gave chase as the defendants ran toward their car. Herde entered the car on the left side and Putnam before entering on the right shot three times at those in pursuit. One of these shots killed Vernon Rineheimer. Charles Rineheimer who in the meantime had procured a gun fired a shot which hit the car as it sped away. The license number was observed. The pair was apprehended a few days later.

Error is assigned because of the admission of evidence as to the stealing of the car earlier in the same day the shooting occurred. The car owner, Victor Wiczorek, and the lady, Stephania Schramek, testified to their being held up and robbed. The verdict was guilty of murder in the first degree.

Lynn H. Smith, of Jefferson, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and John H. Matheson, Dist. Atty., of Janesville, for respondent.

FAIRCHILD, Justice.

[1][2][3] The objection of plaintiff in error, hereinafter referred to as defendant, to the admission of testimony regarding his acts at the time of the commission of another crime early the same day is not altogether valid. While as a general rule a person charged with a particular offense has a right which should not be trespassed upon to have the evidence in support of such charge confined to that particular offense, there is an exception which permits the state to offer proof of other offenses so intimately connected with the one for which the defendant is on trial as to be evidentiary of intent, design or motive. 1 Wharton, Criminal Evidence, 11th Ed., p. 516, § 350, et seq. Testimony concerning the other offenses may be permissible under the exception to the rule for the purpose of identifying the defendant. 1 Wharton, Criminal Evidence, 11th Ed., p. 507, § 348. The criminality of conduct is no reason for excluding evidence of that conduct when it is relevant and admissible. As said in People v. Walters, 98 Cal. 138, 32 P. 864, 865, “but, whenever the case is such that proof of one crime tends to prove any fact material in the trial of another, such proof is admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors is no ground for its exclusion.”

[4] The evidence objected to identified defendant as the one who stole the car and drove it at the time of the perpetration of the robbery of Rineheimer. This evidence was of acts committed within a few (approximately 20) hours of the shooting and was so similar in nature and so closely connected as to show the attitude of mind on the part of the defendant to let nothing interfere with the accomplishment of his purpose and with the escape of himself and his companion. State v. Starr, 24 N.M. 180, 173 P. 674. See also 63 A.L.R. 605. At the time of the killing of Vernon Rineheimer a robbery had just been committed. The robbers were fleeing. In making their escape they shot and killed Rineheimer. The robbers were not known. They drove away in an automobile bearing the license number 436059. One way of identifying them was to show whose automobile it was and who was using it. The testimony objected to came when the owner of the automobile appeared. He was permitted to testify that it was his car and that he was not using it. It naturally and logically followed that he be permitted to testify who was using it, if he knew. That the circumstances of defendant's acquiring the car were such as to cast some reflection on the virtue of defendant would not render the testimony incompetent or irrelevant if it would throw some light on the motive of another closely connected act. 1 Wigmore, Evidence, p. 265, § 216, quotes the neat phrase of Mr. Justice Brewer in discussing the admissibility of evidence of this character as follows: “No man can by multiplying crimes diminish the volume of testimony against him.” The defendant creates evidence against himself. The state discovers it and the jury acts upon it. Daily experience shows altogether too clearly that murder is an accompaniment of the crime generally described as a holdup. Guns are used and the holdup man may be, for the time being at least, desperate enough to kill.

The short and tragic story of the young men engaged in this crime after they entered upon a career of crime is a course of conduct showing intent to destroy anyone who might stand between them and the accomplishment of their purpose and their escape from detection and arrest. They procured the...