Huebner v. State

• Decision Date: 10 January 1967
• Citation: 147 N.W.2d 646,33 Wis.2d 505
• Parties: John J. HUEBNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 646

147 N.W.2d 646

33 Wis.2d 505

John J. HUEBNER, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 10, 1967.

Robert H. Friebert, State Public Defender, Madison, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Lee A. Bernsteen, Dist. Atty., Rhinelander, for defendant in error.

HALLOWS, Justice.

Huebner raises six issues, but five of them do not have sufficient merit to command a reversal. The first issue is whether the information charged Huebner with a crime. In its material part, the information alleged that 'John J. Huebner, did wrongfully, unlawfully and feloniously, attempt to entice a child under the age of 18 years of age into an automobile for immoral purposes, contrary to Section 944.12 Wisconsin Statutes and 939.32 Wisconsin Statutes.' Enticing a child into an automobile for immoral purposes has been made a felony by sec. 944.12, ¹ which provides for imprisonment not exceeding ten years. An attempt to commit a felony is also a crime and sec. 939.32(1), Stats., provides a penalty of imprisonment not to exceed one-half of the maximum penalty for the completed crime.

Huebner challenges the validity of the information on the ground there can be no crime of attempted enticement because sec. 944.12 is itself an attempt statute. He claims sec. 944.12 is no more than an attempt to commit a crime against sexual morality.

In the Criminal Code, crimes are divided into inchoate and completed crimes and are so designated. Sections 939.30, 939.31 and 939.32, Stats., which define solicitation, conspiracy, and attempt, respectively, are crimes of an inchoate nature, and most crimes defined in chapters 940 through 947, Stats., are completed crimes. Entincing a child for immoral purposes (sec. 944.12) was placed in the latter category. While the placement in the statutes is not controlling, it is of some significance in determining legislative intent. The crime of enticement of a child for immoral purposes is a completed crime by its very definition and not an attempt to commit a crime against sexual morality. And, this is true regardless of whether other crimes can or cannot be combined with the general attempt statute or contain within their definition words of attempt. While some crimes cannot by their nature be combined with the general attempt statute because it would result in a contradiction of terms, 1 Wharton's Criminal Law (Anderson ed. 1957), pages 154--155, sec. 72, sec. 944.12 is not such a crime. The gravamen of the crime is not the commission of an act against sexual morality, but in succeeding in getting a child under 18 years of age to enter a vehicle, building, room, or secluded place by enticement or persuasion with intent to commit such a crime. The attempt of this crime is completed when the defendant with the necessary intent tries to persuade or entice the child to get into the vehicle or secluded place.

Furthermore, we question the validity of Huebner's proposition that the state cannot create a crime out of an attempt to attempt a crime. This problem has been considered in connection with attempted assault with a dangerous weapon when the assault is considered an attempted battery and it has been held that such an attempt is a crime. State v. Wilson (1959), 218 Or. 575, 346 P.2d 115, 79 A.L.R.2d 587; Anno., Attempt to commit assault as a criminal offense, 79 A.L.R.2d 597. In Wisconsin common-law crimes are abolished and the only crimes are those created as such by the legislature. Consequently, the legislature within constitutional limits may define what acts shall constitute a crime. No constitutional prohibition forbids the legislature from creating a crime of an attempt to attempt a crime if it can otherwise be done. We hold, however, sec. 944.12, Stats., creates a completed crime and is not an attempt statute.

Huebner additionally contends the information does not charge a crime because the charge is not in the words of the statute and the phrase 'for immoral purposes' is too vague and indefinite. There is no requirement the information in order to charge a crime must be in the language of the statute. Section 955.14, Stats., in part requires only that the crime charged be stated in plain, concise language without unnecessary repetition and contain the name of the defendant and a citation of the statute he is charged with having violated. Subsection (4) provides an information is sufficient after verdict if the crime is described in the words of the statute, but other words conveying the same meaning may be used. We consider the use of 'for immoral purposes' instead of the statutory words 'against sexual morality' when used in the information in connection with the citation to sec. 944.12 entitled 'Enticing a child for immoral purposes' to be sufficient to charge a crime. See State ex rel. Keehn v. Capelle (1962), 17 Wis.2d 116, 115 N.W.2d 487. At most, this information was insufficient in describing and designating the exact crime against sexual morality, and since no objection was made before trial, sec. 955.09 (3), Stats., ² is applicable and the defect was waived.

This section also furnishes the answer to Huebner's objection that the information was defective because it did not allege the name of the victim. Huebner argues the name of the victim is important in an information in order to enable him to prepare his defense and to allow him to plead double jeopardy in the event of a subsequent prosecution. There is no claim Huebner was unable to prepare his defense or was misled and there is no doubt of identity of the victim in the record. Whatever potential difficulty Huebner may have with double jeopardy merely points up the defect. The failure to state the name of a victim in an information charging a sex offense is a defect in form, State ex rel. Wenzlaff v. Burke (1947), 250 Wis. 525, 27 N.W.2d 475, and should have been objected to prior to trial.

The contentions are made that Huebner's arrest was unconstitutional because it was not based upon probable cause, and the inculpatory oral statements made by him at the police station were inadmissible at the trial because he was not advised by the police of his constitutional rights. The record does not bear out or furnish a basis for either of these contentions. The day after the incident a police officer stopped Huebner's car because it matched the description given to the police by Boote. After learning Huebner had used his car the night before, the officer asked him if he would come down to the station because he wanted to further question him. He was not told he was under arrest nor was he ordered to report to the station and he drove his own car there. He had no understanding he was under arrest, his liberty was not restricted, and the officer had no intention at that time of restraining his liberty.

It is claimed the stopping of the car followed by questioning at the police station constituted an arrest. We think a law-enforcement officer may temporarily stop a person and request him to furnish information, to respond to questions or to appear at the police station without arresting such person or without such requested cooperation being considered an arrest. However, it must be made plain to the person he is not under arrest and there is no legal obligation to comply with the request to appear at the station, and the act of the person must be voluntary and uncoerced. However, if the law enforcement officer by order or conduct indicates the person is obliged to remain in the officer's presence or to come to the police station, such person is for practical purposes arrested because of the imposition of the will of the police officer over the freedom of the person. The central idea of an arrest is the taking or detaining of a person by word or action in custody so as to subject his liberty to the actual control and will of the person making the arrest. State v. Phillips (1952), 262 Wis. 303, 308, 55 N.W.2d 384. The same result is reached by a voluntary submission to such custody. But there must exist the intent to take into custody and a corresponding understanding by the person arrested that he is in 'custody,' although no formal declaration of arrest is required. 5 Am.Jur. (2d), Arrest, p. 695, sec. 1. Peloquin v. Hibner (1939), 231 Wis. 77, 84, 285 N.W. 380. For a discussion of Stopping to Question vs. Arrest, see Dahl & Boyle, Procedure and The Law of Arrest, Search & Seizure, p. 11. This problem is also one of the subjects covered in Draft 1 of the Model Code of Pre-Arraignment Procedures in Criminal Cases of the American Law Institute.

None of these conditions occurred or are inferable from the circumstances in this case until after Huebner had given an oral confession to the police and was told he was under arrest. Consequently the arrest stood on probable cause and not suspicion. Phillips v. State (1966), 29 Wis.2d 521, 139 N.W.2d 41; State v. Camara (1965), 28 Wis.2d 365, 137 N.W.2d. 1.

The trial of this case occurred after Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, but before Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and therefore is governed by the Escobedo Doctrine, which was limited by this court to the facts of that case. Phillips v. State, supra; Neuenfeldt v. State (1965), 2. Wis.2d 20, 138 N.W.2d 252, cert. den. 384 U.S. 1025, 86 S.Ct. 1973, 16 L.Ed.2d 1029; State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 133 N.W. (2d) 753, cert. den. 384 U.S. 1017, 86 S.Ct. 1941, 16 L.Ed.2d 1039; Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, cert. den. 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706.

When Huebner arrived at the police station, the officer informed him of the complaints which had been received. Huebner was told that anything he said could be used against him and that he had...