Rafferty v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN
• Citation: Rafferty v. State, 29 Wis.2d 470, 138 N.W.2d 741 (Wis. 1966)
• Decision Date: 04 January 1966
• Parties: Richard L. RAFFERTY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Page 741

138 N.W.2d 741

29 Wis.2d 470

Richard L. RAFFERTY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 4, 1966.

Richard L. Rafferty pleaded guilty to a single count of armed robbery in violation of sec. 943.32, Stats., in the county court of Dane county. Upon his plea he was found guilty and sentenced to ten years in the Wisconsin State Reformatory. Rafferty was not represented by counsel. This court's writ of error was issued at Rafferty's request to review the judgment of April 29, 1964. Additional facts will be found in the opinion.

Neil J. Toman, Madison, for plaintiff in error.

Bronson C. La. Follette, William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

Denial of counsel prior to trial

Rafferty claims that after his arrest he was held in custody by the Madison Police Department without the opportunity to consult or advise with counsel for over forty hours. We have previously cautioned against such police conduct and have pointed out that:

'Such detention casts a doubt upon the validity of police methods of crime detection, constitutes an abuse to the arrested individual and may raise a question of the voluntariness of the acts performed and the statements made by the accused during that period of time.' Pulaski v. State (1964), 23 Wis.2d 138, 145, 126 N.W.2d 625, 630.

However, this alleged abuse of the criminal process is raised for the first time in the brief and oral argument of counsel. There is nothing of record that would properly bring this contention before us. As we have previously said, our review of a judgment on writ for error is necessarily limited to the correction of errors that appear on the face of the record. Sparkman v. State (1965), 27 Wis.2d 92, 96, 133 N.W.2d 776; Babbitt v. State (1964), 23 Wis.2d 446, 450, 127 N.W.2d 405. In Sparkman, supra, we held that the contention that the defendant appeared at the preliminary hearing in manacles could not be considered by this court on writ of error when the record is silent in that regard.

We point out, however, that even though the record did show an unlawful detention, there has been no claim made that there was causal connection between the detention and the subsequent plea. Additionally, 'Some showing must be made why the preservation of the constitutional issues were not waived by his subsequent plea of guilty.' Pulaski, supra, 23 Wis.2d p. 146, 126 N.W.2d p. 630.

Not having raised this alleged error on the record below by a motion to withdraw the plea, this matter is not before us.

Waiver of counsel and plea of guilty

Additionally, the defendant claims that he did not freely and intelligently waive his right to counsel at the time of arraignment. Again, this matter is initially raised in this court and not be the appropriate motion in the trial court. We held in Van Voorhis v. State (1965), 26 Wis.2d 217, 223, 131 N.W.2d 833, that:

'A claim that defendant was not properly advised cannot be raised as a matter of right on review of the judgment unless the claim was raised in the trial court before judgment. If not so raised before judgment, the claim can be raised here by appeal from the order of the trial court, after judgment, denying an application on that ground for a new trial or leave to withdraw a plea.'

The record, however, of the proceeding at arraignment is before us and in the discretion of the court it may review matters of record though not raised initially and properly in the trial court.

Upon a review of that record, we conclude that the defendant intelligently and voluntarily waived his right to counsel. He was advised of his right to have counsel at public expense and of the consequences of his plea and the possible duration of sentence. He was informed in detail of the factual basis for the charge against him, and the use of coercion, duress, or promises was inquired into. The court asked no questions in regard to the defendant's educational background or level of intelligence. However, the questions and responses to them were of a nature that the judge could adequately appraise the defendant's intelligence. Moreover, the record shows that the judge was aware of the defendant's previous criminal record and his frequent brushes with the law. A review of the record makes it apparent that counsel was waived and the plea of guilty entered freely, voluntarily, and understandingly. That is all that justice and due process require. State ex rel. Kline v. Burke (1965), 27 Wis.2d 40, 45, 133 N.W.2d 405.

Pellet gun a dangerous weapon within the meaning of sec. 943.32(2), Stats.

The defendant is charged with violation of sec. 943.32(1) and (2), Stats., which provide as follows:

'(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means may be imprisoned not more than 10 years:

'(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; or

'(b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.

'(2) Whoever violates sub. (1) while armed with a dangerous weapon may be imprisoned not more than 30 years.'

'The information charges that he was 'armed with a dangerous weapon, to wit, a pellet gun.'

Counsel contends that a pellet gun is not a dangerous weapon in the purview of the statute.

Sec. 939.22(10) defines 'dangerous weapon' as:

'* * * any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.'

Sec. 939.22(14) defines 'great bodily harm' as:

'* * * bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.'

A pellet gun is not a firearm. A firearm is defined by Black's Law Dictionary as 'a weapon which acts by force of gunpowder.'

The question, however, is whether a pellet gun is a 'device designed as a weapon and capable of producing death or great bodily harm.' It is clear that a pellet gun is a weapon. In W. H. B. Smith, Gas, Air, & Spring Guns of the World, Military Service Publishing Company (1957), the following definition appears at page 169:

'A compressed-air gun (or rifle or pistol) is an arm in which the air which furnishes the force to propel the pellet (or ball, bullet, dart, or spear) is compressed in a chamber, which may be housed within the arm or may be attached directly to it.'

The record does not disclose the exact nature or make of the pellet gun used. The transcript reveals that the gun was 'pumped up.' Smith, supra, p. 169, points out that in England pump guns are by law limited in muzzle velocity and those that exceed the limitations are declared to be firearms and are subject to severe restrictions as to use. In discussing American pump pellet guns, Smith states, p. 169:

'The number of pumping strokes determines the variable power, which can considerably exceed European police regulations.'

The Benjamin pump pistol will penetrate about one-fourth inch on pine (Smith, supra, p. 176). A pump gun rifle may penetrate as much as an inch into a pine board (supra, p. 172). Smith states that the Sheridan Super pump...