Heyroth v. State
| Citation | 81 N.W.2d 56,275 Wis. 104 |
| Parties | Roger HEYROTH, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Decision Date | 05 February 1957 |
| Court | Wisconsin Supreme Court |
Donald W. Kaatz, Madison, for plaintiff in error.
Stewart G. Honeck, Atty. Gen., William A. Platz, Asst. Atty. Gen., for defendant in error.
The new criminal code, Title XLV, Stats.1955, did not take effect until July 1, 1956, so that the 1953 Statutes are applicable to the instant prosecution. Sec. 343.19, Stats.1953, under which Heyroth was charged, reads as follows:
'Any person who shall buy, receive, conceal or aid in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall receive the same punishment as is hereinbefore provided for the stealing of such money, goods or property; and in any prosecution for such offense it shall not be necessary to aver or prove that the person who stole the same has been convicted.'
Therefore, while value of the stolen goods received is not an element of the crime covered by sec. 343.19, it does determine the severity of the punishment to be imposed for violation of such statute. This is because sec. 343.17, Stats.1953, which specifies the punishment to be imposed upon one who commits the crime of larceny, provides for different gradations of punishment depending upon the value of the property stolen. If the value of the goods stolen does not exceed $20 the punishment is not more than six months imprisonment in the county jail, or a fine not exceeding $100. If such value exceeds $20 but is less than $100, the punishment is imprisonment in the state prison or county jail for not more than one year nor less than six months, or a fine not exceeding $200. More severe penalties are provided where the value of the property stolen is greater than $100.
The first question with which we are confronted is whether the value of the stolen property alleged to have been received by Heyroth may be determined by the trial court, where the jury has failed to find such value in its verdict.
In Koch v. State, 1906, 126 Wis. 470, 478, 106 N.W. 531, 3 L.R.A.,N.S., 1086, it was held in a prosecution for larceny from the person that a verdict that was defective in two respects, one of which was that there was no finding of the value of the property taken, was not sufficient to sustain a conviction.
A trial court in the later case of State v. Clementi, 1937, 224 Wis. 145, 272 N.W. 29, in a prosecution for larceny of a gambling device, refused to submit the question of the value of the device to the jury. This court, in commenting thereon in its opinion, stated in 224 Wis. at page 153, 272 N.W. at page 33:
If the instant case had been a civil instead of a criminal case, there would be no question but that the trial court's action after verdict, in finding the value of the stolen goods received by Heyroth, would have been authorized by sec. 270.28, Stats. Such statute provides as follows:
'When some controverted matter of fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, such matter of fact shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on such matter shall be deemed a waiver of jury trial pro tanto.'
Sec. 270.28 is part of Title XXV, Stats., which is expressly limited to procedure in civil actions. However, the state contends that sec. 357.14, Stats.1953, makes sec. 270.28 applicable to criminal as well as civil trials. Sec. 357.14, Stats.1953, reads as follows:
While such statute is entitled 'Rules of civil trials' a plain reading thereof discloses that all statutory rules of civil trials are not made applicable to criminal trials but only those covering the subjects expressly enumerated therein. The right of a trial court to make a finding of fact after return of the verdict is not embraced within any of the categories enumerated in said sec. 357.14. We, therefore, deem that the state's argument on this issue is without merit.
It is our considered conclusion that only the jury could make the finding of the value of the stolen goods received by Heyroth which is necessary to enable the trial court to impose sentence based upon a value in...
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