Luitze v. State

• Decision Date: 13 January 1931
• Parties: LUITZE v. STATE.
• Court: Wisconsin Supreme Court

204 Wis. 78

234 N.W. 382

LUITZE

v.STATE.^a1

Supreme Court of Wisconsin.

Jan. 13, 1931.

Error to review a judgment of the Municipal Court of Kenosha County; Calvin Stewart, Judge.

Jasper Luitze was convicted of aiding and abetting others in feloniously assaulting and robbing, and he brings error.--[By Editorial Staff.]

Judgment and sentence vacated and set aside, with directions.

Plaintiff in error (hereinafter called the defendant) was convicted of aiding and abetting Alfred Schulz and Finny Pontello in feloniously assaulting one Niewrendowski and robbing him of his moneys and property, the said Alfred Schulz being armed with a dangerous weapon, to wit, a revolver.

Defendant was thereafter sentenced to the Wisconsin State Prison for an indeterminate term of twenty to thirty years pursuant to section 340.40 of the Statutes, and he brings error.L. E. Vaudreuil, of Kenosha, for appellant.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and John P. McEvoy, Asst. Dist. Atty., of Kenosha, for the State.

NELSON, J.

It is undisputed that at the time of the commission of the offense Alfred Schulz was armed with a revolver which was empty or unloaded. These facts were affirmatively proven by the state.

It is also undisputed that the unloaded revolver was pointed at Niewrendowski by Schulz with the desired result that Niewrendowski was completely put in fear so that he obeyed the commands of Schulz and Pontello to open his safe, and turn over to them such of his property as they desired, to walk into the back room and to submit without resistance to having his hands bound with rope. No attempt, however, was made to strike Niewrendowski with the revolver or to use it as a bludgeon.

Upon these undisputed facts defendant contends that he was wrongfully convicted and sentenced, that this sentence should be set aside, and that he should be discharged.

[1] Defendant's contentions are based upon the established law of this state that an empty or unloaded revolver merely pointed at a person, and not used to strike with, is not a dangrous weapon no matter how much the person at whom it is pointed may be put in fear. Lipscomb v. State, 130 Wis. 238, 109 N. W. 986;Schiner v. State, 178 Wis. 83, 189 N. W. 261;Mularkey v. State (Wis.) 230 N. W. 76.

We are urged by the state to overrule or modify the doctrine of these cases and to hold that an empty or unloaded revolver, if of sufficient size and weight to be used as a bludgeon, whether or not actually so used, is in fact a dangerous weapon. While there is authority to support the state's contention that an unloaded revolver is a dangerous weapon because it may be used as a bludgeon, People v. Egan, 77 Cal. App. 284, 246 P. 337;People v. Shaffer, 81 Cal. App. 752, 254 P. 666;People v. Freeman, 86 Cal. App. 374, 260 P. 826, it is not in harmony with our own decisions or with what seems to us to be the great weight of authority. The fact that Lipscomb v. State, supra, was decided in 1906, and that succeeding Legislatures have not seen fit to change the statute as so construed, leads us to the conclusion that the doctrine of the Lipscomb Case and subsequent cases must be considered the settled law of this state until changed by the legislature.

Due to the fact that in these times robberies often occur and that they are quite generally accomplished by using shotguns, revolvers, and automatics, we suggest to the Legislature for its consideration the advisability of enacting a statute relating to robberies or attempted robberies committed by offenders while armed with shotguns, revolvers, or automatics, whether loaded or unloaded, and providing such a range of penalty as it may in its wisdom deem just.

[2] We are constrained to hold that since Schulz was not armed with a dangerous weapon as defined by the decisions of this court, it was error to sentence the defendant to an indeterminate term of twenty to thirty years pursuant to the provisions of section 340.40.

But it does not follow that the defendant should be discharged. The information herein, omitting the formal parts, is as follows: “Jasper Luitze, did, aid and abet one Alfred Schulz and Finny Pontello in the commission of a felony, to-wit: the wilful and felonious assault and robbing and stealing of the monies and property of one J. G. Niewrendowski, the said Alfred Schulz being then and there armed with a dangerous weapon, to-wit: A revolver, with the intent of the monies and property of the said J. G. Niewrendowski, to rob, steal, take and carry away, by counselling or otherwise procuring such felony to be committed.”

The verdict of the jury found the defendant guilty of the crime charged.

[3] Two questions arise which must be answered in order that this action may be disposed of: (1) Was the defendant found guilty of an offense for which he might have been properly sentenced? (2) May the erroneous sentence be set aside and the defendant again brought before the court for proper sentence?

The answer to the first question is not difficult to make. Had the information charged that Schulz was armed with a dangerous weapon, to wit, a loaded revolver, we would have before us a somewhat different situation; but the information simply charged that Schulz was armed with a dangerous weapon, to wit, a revolver. Under our decisions an unloaded revolver is not a dangerous weapon. The information clearly does not charge that Schulz was armed with a loaded revolver. It does not therefore charge that he was armed with a dangerous weapon. The language “being armed with a dangerous weapon, to-wit: a revolver” may therefore be treated as mere surplusage, since it does not and is not sufficient to charge a crime under section 340.40 of our Statutes. Eliminating from the information the language just quoted, we have an information substantially charging an offense under section 340.43 of the Statutes.

We therefore conclude that the verdict of the jury which found the defendant “guilty of the offense charged” was in fact a finding that the defendant was guilty of aiding and abetting an offense under section 340.43 of the Statutes, and that the defendant should have been sentenced accordingly. Had the trial court found, as it should have done under the established law of this state, that an empty or unloaded revolver is not a dangerous weapon and that the language of the information “armed with a dangerous weapon, to-wit: a revolver,” was not sufficient to charge a crime under section 340.40, it would no doubt properly have sentenced the defendant under section 340.43.

[4][5] The second question is whether the erroneous sentence may be set aside and the defendant again brought before the court for proper sentence under section 340.43. It is generally held that a judgment sentencing a person to imprisonment for a longer term than the statute warrants is merely...