Moore v. State
| Decision Date | 06 June 1972 |
| Docket Number | No. S,S |
| Citation | 55 Wis.2d 1,197 N.W.2d 820 |
| Parties | Raymond M. MOORE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 133. |
| Court | Wisconsin Supreme Court |
At about 4:20 p.m., May 11, 1970, Angeline Schuld, sixty-three years of age, was on her way to St. Michael's church located at 24th and Cherry in the city of Milwaukee, Wisconsin. She went to the door of the church, found it locked and turned around. At this point the plaintiff in error, Raymond M. Moore, came up to her and said: 'Don't you holler or scream.' He held his hand in his pocket, moved it, and then asked, 'What do you have on you'? She said, 'I have a pocketbook in my coat--my little coin purse.' He said, 'What's in it?' She opened it. There was about $1.16 worth of change in it. She believed he wanted it so she gave him the coin purse. He moved towards her and said, 'Don't you holler or scream.' She said, She then walked towards the other end of the church. He walked in the opposite direction with the purse and the change.
She turned around to see the defendant running away. She saw a man, George Retic, standing on the corner of 24th and Cherry. She went up to him and said, 'That man took my money.' She then declared that she was going home. Retic told her that they should call the police. He lent her a dime and she called the police.
A police car arrived, picked up Angeline Schuld and George Retic and drove about the neighborhood looking for the defendant.
They finally saw the defendant walking down a nearby street (West Walnut), stopped him and found Angeline Schuld's green coin purse in his possession. The defendant was arrested and charged with robbery by threat of force, a violation of sec. 943.32(1)(b), Stats.
On June 19, 1970, a trial to the court was held on the robbery charge. After the state rested its case, the defendant, by his appointed counsel, moved to dismiss the charge because the state had not proven one of the elements of the robbery, namely--the taking by force or fear of force.
The court, sua sponte, amended the charge to theft from the person, a violation of sec. 943.20(1)(a) and (3)(d)(2), Stats. The court, after the defendant testified on his own behalf, found the defendant guilty of theft from the person and sentenced him to a five-year indeterminate term.
Frederick Hersh, Thomas A. Schulz, Milwaukee, of counsel, for plaintiff in error.
Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gen., Madison, for defendant in error.
The issues are:
1. Was the defendant subjected to double jeopardy because the trial court amended the robbery charge and then found him guilty of theft from the person?
2. Was the trial court's sua sponte amendment of the information reversible error?
3. Did the amended information charge a crime so as to sustain a conviction for theft from a person?
4. Did the trial court abuse its discretion in sentencing the defendant?
The defendant contends that the amendment of the charge from robbery to theft from a person subjected the defendant to double jeopardy in violation of art. 1, sec. 8 of the Wisconsin constitution and the fifth amendment to the United States constitution.
The defendant bases his argument upon two premises, to wit: That theft from a person is a lesser included offense in the crime of robbery; and that the motion to dismiss by the defendant was granted by the trial court.
The two statutes involved are as follows:
Sec. 943.32(1)(a), Stats., defines robbery:
'(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property.'
Sec. 943.20(1)(2) and (3)(d) 2, Stats., describes larceny from the person in the following terms:
'(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property.
'. . .
'. . .
'(d) If the value of the property is less than $2,500 and any of the following circumstances exist, a fine of not more than $5,000 or imprisonment for not more than 5 years or both:
'. . .
We have recently held that theft is not a lesser included offense of the crime of robbery because theft required the additional and necessary element of asportation. Champlain v. State (1972), 53 Wis.2d 751, 193 N.W.2d 868.
A cursory examination of sec. 943.32(1)(a), Stats., does not reveal the element of asportation. However, a re-examination of the words 'with intent to steal, takes property,' in their proper context, convinces us they include the element of asportation.
In 40 Words and Phrases, (perm. ed.), Steal, pp. 204, 205, the words 'steal' and 'theft' are used synonymously. Cox v. Territory (1909), 2 Okl.Cr. 668, 104 P. 378; Ladwig v. Heyer (1907), 136 Iowa 196, 113 N.W. 767; Williams v. State (1882), 12 Tex.App. 395; Young v. State (1882), 12 Tex.App. 614; Harris v. Thorton's Dept. Store (1936). (Tex.Civ.App.) 94 S.W.2d 849.
Also in 40 Words and Phrases, (perm. ed.), Steal, pp. 197--200, the cases almost universally define the word 'steal' to mean to feloniously take and carry away the property of another.
Further, in 41A Words and Phrases, (perm. ed.), Theft, p. 114, 'robbery' is distinguished from 'theft' only in that robbery contains the element of violence or the threat of violence.
In Champlain, supra, 53 Wis.2d at p. 755, 193 N.W.2d 868, we pointed out that there was a conflict among the various jurisdictions as to whether theft was a lesser included offense in the crime of robbery. Additional research has demonstrated that the majority rule is that theft is included in the crime of robbery and we concur with the majority rule. Our result is not inconsistent with Hawpetoss v. State (1971), 52 Wis.2d 71, 187 N.W.2d 823, for Hawpetoss held only that asportation was an element of the crime of theft. We now hold that robbery necessarily includes the element of asportation and that larceny from the person is a lesser included crime.
As to defendant's second premise, the record clearly indicates that the trial court did not explicitly dismiss the robbery charge. Rather, it amended the information to charge the defendant with the crime of theft.
Sec 939.66(1), Stats., provides:
'(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.'
Because we have determined that theft is an included crime in that of robbery, the trial court was justified in finding the defendant guilty of theft from the person. Kimmons v. State (1971), 51 Wis.2d 266, 186 N.W.2d 308; State v. Melvin (1970), 49 Wis.2d 246, 181 N.W.2d 490; Zenou v. State (1958), 4 Wis.2d 655, 91 N.W.2d 208. As such the defendant was not subjected to double jeopardy as prohibited by both the federal and state constitutions.
The defendant urges that the trial court committed prejudicial error when after it amended the charge against him it failed to inform him of the nature and potential penalties under the amended charge, and that the trial court erred in not allowing the defendant to enter a plea to the amended charge. The defendant urges that these omissions are a violation of art. 1, sec. 7 of the Wisconsin constitution, which provides:
The attorney general argues that sec. 957.16, Stats., allows the trial court to amend the charges against a defendant.
Sec. 957.16, Stats., 1967, provides:
'(2) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.'
The question arises as to whether the trial court's action constituted a material variance to the merits of this action.
In this instance, since theft is an included crime of robbery, the amendment of the information from robbery to theft did not materially prejudice the defendant. All of the elements of theft are included in the elements of robbery. Of necessity, then, the defendant had notice and opportunity to prepare a defense to the elements of theft as well as to the additional elements that comprise the crime of robbery.
It is our opinion that the trial court did not commit error when it sua sponte amended the information.
The defendant also contends that the amended information was insufficient in that the facts alleged did not charge the defendant with intent to permanently deprive Angeline Schuld of her purse and the money. Therefore, argues the defendant, he could not have been convicted of theft because the information did not charge theft, nor did the trial court's amendment of the information involve any factual changes, only a renumbering of...
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