Organ v. State
| Decision Date | 01 October 1974 |
| Docket Number | No. S,S |
| Citation | 65 Wis.2d 36,221 N.W.2d 823 |
| Parties | James L. ORGAN, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error tate 89. |
| Court | Wisconsin Supreme Court |
Richard J. Kelly, Eau Claire, for plaintiff-in-error.
Robert W. Warren, Atty. Gen., Steven B. Wickland, Asst. Atty. Gen., Madison, for defendant-in-error.
The following issues are presented on this appeal:
1. Is the complaint jurisdictionally defective for failing to allege intent and for failing to state facts sufficient to establish probable cause to believe that the requisite intent existed?
2. Was sufficient evidence presented at the preliminary hearing to establish probable cause to bind defendant over for trial?
3. Was denial of the defendant's motion to suppress erroneous?
4. Should the certified copies of the records of the Department of Public Safety of the State of Minnesota have been excluded?
5. Was there sufficient evidence to support a finding of guilty?
6. Was the sentence imposed on defendant based upon improper considerations?
7. Should this court grant a new trial in the interests of justice?
The defendant's first contention is that the complaint fails to allege an essential element of the crime charged. The complaint charges that the defendant 'did feloniously receive' stolen property having a value in excess of $2,500.00, contrary to Sec. 943.34(3), Stats. The essential element supposedly lacking is 'intent.'
The defendant contends that the factual statement in the complaint is completely devoid of any allegation of fact which would support any sort of inference that the defendant had intentionally received stolen property. We do not agree.
The question to ask in evaluating a complaint is:
'Does it . . . meet the test of minimal adequacy, not in a hypertechnical but in a common sense evaluation, in setting forth the essential facts establishing probable cause?' State ex rel. Evanow v. Seraphim (1968), 40 Wis.2d 223, 226, 161 N.W.2d 369, 370.
The question is could a fair-minded magistrate conclude, in a common sense evaluation, with consideration given to all the facts and circumstances, that the defendant probably knew the vehicle in his prossession was stolen?
The complaint reflects that Kuhnert visually identified the vehicle as the one stolen from him on May 18, 1971. The complaint also states that the I.D. No. F25YCC93895 was found on the vehicle in defendant's possession, which number corresponded to the vehicle Kuhnert said was stolen from him. From this it can be inferred that the vehicle driven by the defendant on August 14, 1972 was the vehicle which Kuhnert said was stolen from him.
From the fact that the complaint described the I.D. No. F25YCC93895 as 'hidden' it can be inferred that the other 'non-hidden' number that typically identifies a vehicle did not match up with the 'hidden' number that identified the vehicle as the one Kuhnert said was stolen from him. If the other identification number did not match the 'hidden' number a reasonable inference is that tampering produced the disparity.
The defendant contends that no crime is alleged in the complaint and, therefore, subject matter jurisdiction never existed and the judgment is void.
In the case of Waite v. State (1973), 57 Wis.2d 218, 226, 203 N.W.2d 719, 724 this court stated:
'Defects in the complaint, arrest or search would not go to subject matter jurisdiction.' (citing Galloway v. State (1966), 32 Wis.2d 414, 418, 419, 145 N.W.2d 761, 147 N.W.2d 542.
Also in Waite v. State, supra, 57 Wis.2d page 226, 203 N.W.2d page 723, the court explained that
'Subject matter jurisdiction is the power of the court to determine the facts, apply the law and set the penalty.'
In Pillsbury v. State (1966), 31 Wis.2d 87, 93, 142 N.W.2d 187, it was explained as follows:
'Criminal jurisdiction of the subject matter is a power of a court to inquire into the charge of the crime, to apply the law, and to declare the punishment in the court of a judicial proceeding and is conferred by law.' P. 94, 142 N.W.2d p. 191.
Here the defendant knew precisely what offense he was charged with having committed. No claim is asserted that he did not know the nature and cause of the charges made against him, or that he was in any way prejudiced by the failure of the state to use the exact language of the statute in the complaint.
This court held in the recent case of State v. Schneider (1973), 60 Wis.2d 563, 211 N.W.2d 630 that the term 'feloniously' appearing in a pleading purportedly charging a crime does not mean 'intentionally.' In the case at bar the information initially lacked an allegation of intent but was amended to include it. As this court noted in State v. Neukom (1944), 245 Wis. 372, 14 N.W.2d 30, while a complaint may fail to set forth the particular accusation correctly, a sufficient information can cure such defect.
Sec. 971.31(8), Stats. provides:
'No complaint, indictment, information, process, return or other proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court; and the court may order an amendment curing such defects.'
The complaint in this case, as far as the charging portion goes, is adequate. The defendant knew the crime he was charged with and could prepare a defense to it. He was not prejudiced by it. The case and the identity of the defendant were obvious to the court. The amendment of the information was proper pursuant to Sec. 971.31(8), Stats.
Defendant relies heavily on the Schneider case to emphasize the issue of subject matter jurisdiction. However, in the more recent case of Clark v. State (1974), 62 Wis.2d 194, 214 N.W.2d 450 it was held that the Schneider case went directly and only to the question of whether scienter is a constitutionally required element in a criminal obscenity statute because it is intimately related to the constitutional scope (first amendment) of the power to bar material as obscene.
We conclude that the trial court had jurisdiction, both as to the subject matter and the person of the defendant.
The second contention made by the defendant is that the evidence presented at the preliminary examination was not sufficient to bind the defendant over for trial.
The purpose of a preliminary hearing is to determine if there is probable cause to believe that a felony has been committed. Gaddis v. State (1974), 63 Wis.2d 120, 122, 216 N.W.2d 527.
Taylor v. State (1972), 55 Wis.2d 168, 172, 197 N.W.2d 805, 807.
The defendant argues that no 'guilty knowledge' was proven and also, that the value of the truck and camper was not established. As to the question of guilty knowledge, the state did show that the defendant was driving the vehicle and that he produced Minnesota cab cards for 1971 and 1972 showing that he was the owner of a vehicle with identification number F25YPC70173 which number matched that on the metal tag on the door frame. Evidence was also introduced to show that Charles Kuhnert reported a truck stolen with identification number F25YCC93895 in May, 1971. This number matched the number found on the frame of the vehicle the defendant was driving. Kuhnert testified as to certain features of the truck driven by the defendant.
At the preliminary hearing, the state, without objection, introduced into evidence certified copies of documents from the Department of Public Safety for the State of Minnesota. These documents showed that defendant had first purchased a 1968 Ford pickup in September, 1970 and the identification number of the truck then purchased matched the identification number on the tag on the door of the truck in question. This shows that the defendant did have 'guilty knowledge' because Kuhnert's truck was not stolen until May, 1971. The only reasonable inference that can be drawn is that the defendant knew that the truck he was driving was stolen and that the identification number tags were switched to make it look as though this were his original truck. As to the value of the truck, there was evidence that as of May and June, 1971 the truck and camper were worth $3,700. At that time, the truck had 6,000 miles on it. The defendant was charged under Sec. 943.34(3), Stats. which deals with possession of stolen property with a value in excess of $2,500. This was sufficient evidence as to value to bind the defendant over on this charge.
There is also a question raised as to who owned the vehicle at the time the defendant was stopped with it. While there was proof that Kuhnert owned it in May, 1971, he testified he subsequently transferred title to the Sentry Insurance Company. What Sentry did with the title is not shown. However, the vehicle was identified and two identification numbers were on it. One corresponded to a truck previously registered in the defendant's name. The other corresponded to the stolen truck. This evidence allows for a reasonable inference that the identity of the vehicle was being concealed and that the defendant had neither title in nor permission to use the vehicle.
The evidence presented at the preliminary hearing was sufficient to establish the probability that a crime had been committed and that the defendant probably committed it.
On appeal, the defendant raises the issue of whether the motion to suppress was properly denied as to the searches of the vehicle by Kuhnert. Even...
To continue reading
Request your trial
-
State v. Petrone
...intimately related to the constitutional scope (first amendment) of the power to bar material as obscene."See also Organ v. State, 65 Wis.2d 36, 43-44, 221 N.W.2d 823 (1974) and State v. Nowakowski, 67 Wis.2d 545, 569-70, 227 N.W.2d 697 (1975). Clark, Organ, and Nowakowski can also be inter......
-
Zelenka v. State
...302, 326, 477 F.2d 1187, 1211 (1973).9 See also Walberg v. State, 73 Wis.2d 448, 458, 243 N.W.2d 190 (1976).10 Organ v. State, 65 Wis.2d 36, 43, 221 N.W.2d 823 (1974); Waite v. State, 57 Wis.2d 218, 226, 203 N.W.2d 719 (1973); Pillsbury v. State, 31 Wis.2d 87, 94, 142 N.W.2d 187 (1966).11 "......
-
Bere v. State
... ... This court has held many times that a new trial will be granted in the interest of justice only if it appears that justice has miscarried and that a retrial under optimum circumstances will produce a different result. Organ v. State, 65 ... Page 822 ... Wis.2d 36, 50, 221 N.W.2d 823 (1974). This is not such a case. The defendant advances the argument that "different result" might also refer to a conviction, in this case, for misdemeanor rather than felony criminal damage to property. Without again reviewing ... ...
-
State v. Faltynowicz, 5763
...of minimal adequacy in setting forth the essential facts establishing probable cause, using a commonsense approach. Organ v. State, 65 Wis.2d 36, 221 N.W.2d 823 (1974). It does not make sense to dismiss a complaint as being insufficient because it has an obvious typographical error. In Unit......