Lock v. State

• Decision Date: 13 May 1966
• Citation: 142 N.W.2d 183,31 Wis.2d 110
• Parties: James LOCK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Lawrence LOWRY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 183

142 N.W.2d 183

31 Wis.2d 110

James LOCK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Lawrence LOWRY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

May 13, 1966.

Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee, for defendant in error.

HALLOWS, Justice.

Four questions are raised on this appeal: (1) Was the evidence presented at the trial sufficient to prove the defendants' guilt beyond a reasonable doubt; (2) did the trial court commit error when it refused to grant the defendants a new trial; (3) should the proceeding have been dismissed because the warrants for the arrest of the defendants were invalid; and (4) should a new trial be granted in the interests of justice?

We have said many times that when the question of the sufficiency of the evidence is presented on appeal in a criminal case the only question for this court is whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendants' guilt beyond a reasonable doubt. State v. Johnson (1960), 11 Wis.2d 130, 137, 104 N.W.2d 379; State v. John (1960), 11 Wis.2d 1, 103 N.W.2d 304; Parke v. State (1931), 204 Wis. 443, 235 N.W. 775; State v. Stevens (1965), 26 Wis.2d 451, 132 N.W.2d 502. This ultimate test is the same whether the trier of the facts is a court or a jury. State v. Waters (1965), 28 Wis.2d 148, 135 N.W.2d 768; Gauthier v. State (1965), 28 Wis.2d 412, 137 N.W.2d 101. Invariably the briefs and arguments on this issue point to what the trier of the facts could have found or what this court should determine. The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of the facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.

The sufficiency test is often stated in terms of burden of proof, but it is not unusual to state the test in terms of quantity of the evidence. See State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701. Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt.'

The defendants argue this is not an ordinary case of conflicting testimony which can be resolved by the trier of the facts who is free to determine the credibility of the witnesses. We do not agree. We think the evidence is sufficient if the court believed, which it apparently did, the version most favorable to the conviction. Outside of the unusualness of such an occurrence happening in a tavern in the presence of apparently unsamaritan patrons, the argument of the defendants goes to the credibility of the victim concerning whether he had any money.

Reynolds gave conflicting stories about having some $220 on his person. He first stated he cashed a check for $1,090 issued by the treasurer of the city of Milwaukee and he gave his wife $900 of it. An employee of the comptroller's office testified there was no record of any such check issued by the city treasurer but there was a check for $710 issued to the victim's wife. Later Reynolds changed his story about the check, saying he cashed two checks. There were other inconsistencies in Reynolds' story of his whereabouts prior to the robbery. However, the essential facts of his story of that happened in the tavern were corroborated by his companion Clarence Horton.

Because both Horton and Reynolds had prior criminal records, the defendants claim their testimony should not be believed. Prior convictions constitute a sufficient reason for disbelieving a witness, but the trier of the facts is not required to disregard such testimony. Whether Reynolds had $220 on his person at the time of the alleged robbery is basically a matter of believing or disbelieving Reynolds. The trial court chose to believe him and this would be sufficient to prove that element of crime even though the record does not show such money was found upon the defendants when they were apprehended a few hours after the alleged robbery. Not every doubt or suspicion is sufficient to prevent a belief beyond a reasonable doubt. The doubt constituting the insufficiency must be a reasonable one in view of all the evidence. If the evidence is sufficiently strong to exclude any reasonable theory of innocence, it meets the test of sufficiency. State v. Johnson, supra.

We do not think the trial court committed error in refusing to grant a new trial on the ground of newly discovered evidence. The evidence offered was a statement by Mrs. Reynolds the day after the conviction to the attorney for the defendants to the effect that she cashed a check issued by the treasurer of the city of Milwaukee for $710 on February 26th but did not give her husband any money from the check, and her husband did not cash a check on that day and did not give her $900. She told the attorney that her husband received $150 from a person in Menomonee Falls on February 26th and had loaned some of it to a friend. Assuming the evidence, which was hearsay in the form presented in the defendant's affidavit, is true, at the most it is cumulative and goes to the credibility of Reynolds when he testified he cashed checks, gave his wife money, and had some $220 on his person at the time of the robbery.

The rules governing the granting of a new...