Jandrt v. State
| Decision Date | 27 June 1969 |
| Docket Number | Nos. 156 and 157,s. 156 and 157 |
| Citation | 168 N.W.2d 602,43 Wis.2d 497 |
| Parties | Jerry Roy JANDRT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State |
| Court | Wisconsin Supreme Court |
On November 11, 1966, defendant was charged with the November 6, 1966, burglary of the R. B. Tool & Mfg. Co., located at 3510 West Kiehnau avenue in the city of Milwaukee. The information charged also that defendant removed from the above premises $16 in cash, eight packs of cigarettes, and 242 blank checks.
A jury trial was held on November 29 and 30, 1967. The defendant was found guilty, and was thereupon committed to the Wisconsin state prison for an indeterminate sentence of not more than four years.
Defendant's motion for an order setting aside the jury verdict and for judgment of acquittal, or in the alternative for a new trial, was denied.
Defendant seeks on writ of error to review both the conviction judgment and the order denying defendant's motion.
James H. McDermott, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, E. Michael McCann, Milwaukee County Dist. Atty., Theodore J. Hodan, Asst. Dist. Atty., Milwaukee, for defendant in error.
On this review the principal contention of the defendant is that the evidence is insufficient to sustain a finding of guilt beyond a reasonable doubt. Specifically, the public defender contends that the uncorroborated testimony of an accomplice, Gerald Mapps, who said he observed the defendant pry open the panel of a door of the burgled premises with his hands, is not entitled to belief and will not support the finding of guilt.
In Sparkman v. State, 1 this court reiterated the oft stated rule:
'* * * The uncorroborated testimony of an accomplice is * * * competent evidence upon which to base a verdict of guilty if it is of such a nature that it is entitled to belief and the jury believes it.' (Emphasis added.) 2
Our first inquiry must be to ascertain the precise testimony of the accomplice as to how defendant gained entry to the burgled premises.
Admittedly, the only person claiming to have been an eyewitness to the burglary for which the defendant was convicted was the accomplice, Gerald Mapps. Mapps was sixteen years of age at the time of the trial, the prosecution stipulated that Mapps was an inmate at the juvenile detention center at Plymouth 'by reason, among other things, (of the fact that) he was involved in this incident, for whatever merit it has.'
According to Mapps, he and the defendant had on November 6, 1966, at 7 p.m., gone together to the R. B. Tool & Mfg. Company after he and the defendant had conversed about the defendant's need for money. Mapps testified that after they arrived at the premises, 'we broke into it.' On direct examination he stated that 'we got a door pried open' and further testified that the defendant entered the building first, by going through the door that was pried open. Mapps stated that he entered the building when the defendant 'opened the side door for me.' Defense counsel concedes that up to this point Mapps' narrative might be plausible but contends that on cross examination it was rendered incredible.
The transcript reads as follows:
'Q. When you got to this door, as I believe you testified, that was pried open--
'A. Yes?
'Q.--do you recall what that door looked like? A. Like a big sheet of plywood.
'Q. Now, would you explain to the jury how this sheet of plywood, as you explained it, was pried open? A. Jerry Jandrt pried it open with his hands and I held it for him while he crawled through.
'Q. Just a minute. With respect to the actual prying, he pried this open with his hands? A. Yes, sir.
'Q. Did you see him do this? A. Yes, sir.
'Q. With his hands? A. That's right.
'Q. Did he pry it from the top? A. No, sir.
'Q. From the bottom? A. Yes, sir.
'Q. And how did his piece of plywood, or this door, come out, if you recall, as he was prying it? A. Well, the bottom corner just pulled open, or, you know, about like I said, about a couple of feet. Just enough so I could hold it and he could crawl through.
(Emphasis added.)
The public defender contends that the above-quoted testimony is of cardinal importance and if it is unworthy of belief then the uncorroborated testimony of Mapps was not such as to provide adequate support for the guilty verdict. Defense counsel argues that the record in this case establishes that the feat of prying open the panel attributed by Mapps to the defendant was well beyond the defendant's physical strength, and one which a much larger and stronger man might have found exceedingly difficult, if not impossible.
Concerning the door panel, Mr. Robert Bluma, owner of the R. B. Tool & Mfg. Co., testified as follows:
'A. I can tell you this would be four feet pieces, 3 8, because this is the way plywood comes. * * *
'* * *
'Q. Four foot panel, the one that was pried? A. The one pried loose here, yes.
'Q. You are referring now to the, as you look at it, the right hand side lower corner? A. Yes.
'Q. Now, the construction of this panel, Mr. Bluma, was actually made up of three panels; is that correct? A. Yes.
'Q. And each panel contained some lumber and plywood? A. Yes.
'Q. Now, as you would look at this particular door with panels, would you be looking at plywood in that door panel? A. From the outside this is a 1 5 or 1 6 frame. Each of these is the frame, bolted together.
'Q. So each one of these panels is a 1 6 frame, bolted together, and has plywood. A. On the inside.
'Q. From the inside. Now, you indicated on this drawing, Mr. Bluma, some lines extending--A. Screws to the jam there.
'Q. Screws to the jim? A. Yes.
'Q. So that the sides of this door, as you looked at it, the side of the door, as you look at it, were screwed into the jam. A. Yes.
'Q. Is that what that black line through the side indicates? A. yes.
'Q. Now then, also you show some curved or jagged lines. A. These are hooks on the inside, in the event--because someone might go to the trouble of removing the screws. Well, they're there with hooks on the inside in addition to that.
'Q. So that hooks were on the inside of this panel, which was on the inside of the west wall of your building. A. Right.
'Q. And these hooks were such that they would hook into an eye; is that correct? A. Yes.
'Q. And in addition to that the panel was screwed into the side plate of the door jam, or whatever you want to call that. A. Yes.
'Q. And this plywood was on the inside of the building? A. Yes.
'Q. So that if this plywood were to be pulled outward, it would have to be pulled against these screws and against these--A. Yes.
'Q.--hooks. A. That's right.
'Q. Did this door provide good protection against the elements? A. Yes, adequate.
(Emphasis added.)
The public defender contends that this quoted testimony raises a reasonable doubt that the door panel in question could have been pried open by the defendant with his bare hands. It is argued that even a man of extraordinary strength could not have accomplished the act of prying open the door panel without the aid of some tool or instrument. According to defendant's own testimony, in addition to his light weight of 132 pounds, he had never done any extensive type of athletic work.
After reviewing the entire record we are satisfied that the accomplice's testimony, even if limited to his observation that the defendant pried the door panel open with his bare hands, is not incredible and that the jury could have believed what the accomplice said he observed.
Furthermore, the state correctly points out that it was dark outside when the defendant was attempting to gain entry to the burgled premises and that Mapps' testimony indicated that Mapps was acting as a lookout for possible cars. Thus, the state correctly concludes Mapps was unable to see all the defendant's actions and Mapps 'may well have not observed the defendant using some instrument to assist in loosening the plywood panel.'
In other words, Mapps admitted to a limited interval of time during which the defendant may have used a tool to help pry open the door panel. In any event when the door panel was finally pried open, Mapps said he saw the defendant doing this with his own hands. We find this believable.
The state also urges that Mapps' testimony was corroborated. In Sparkman we said:
3
We find that there is a good deal of testimony that connects the defendant with the commission of the crime.
The defendant himself admitted being with Mapps on the night of the burglary and further admitted receiving some Camel cigarettes from Mapps. Some of this brand of ciagarettes were taken from the burgled premises. This testimony certainly is circumstantial evidence from which the jury could conclude that Mapps and the defendant were together during the earlier part of the evening when the burglary took place.
Additionally, the defendant admitted that he observed Mapps with the burgled checkbook and saw him place it in an abandoned automobile. Again, from this circumstantial evidence, the jury could well have concluded that defendant was tied to the entry of the premises from which the checkbook was taken.
It may be that there was no detailed corroboration of the precise testimony of the prying open of the door. To require this would place an impossible burden on the state. It seemingly would...
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