Raymond v. State

• Decision Date: 30 June 1972
• Docket Number: No. S,S
• Citation: 198 N.W.2d 351,55 Wis.2d 482
• Parties: Horace RAYMOND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 198.
• Court: Wisconsin Supreme Court

Page 351

198 N.W.2d 351

55 Wis.2d 482

Horace RAYMOND, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 198.

Supreme Court of Wisconsin.

June 30, 1972.

Robert H. Bichler, Racine, for plaintiff in error.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.

Plaintiff in error Horace Raymond (hereinafter 'defendant') was charged with burglary and battery contrary to secs. 943.10(1)(a) and (2)(d), Stats. Following a trial by jury, defendant was convicted of these charges on April 22, 1971. He was sentenced on May 17, 1971, to an indeterminate term of not more than twelve years at the state reformatory at Green Bay.

By order, dated June 28, 1971, this court appointed Attorney Robert H. Bichler to represent defendant during postconviction proceedings. Attorney Bichler made a motion for a new trial, on the grounds that the evidence was insufficient to support the conviction and that the trial court erred in refusing to submit a lesser included offense to the jury. The trial court denied the motion on September 13, 1971. Writs of error were issued to review the judgment of conviction and the order denying the motion for a new trial. The facts will be stated in the opinion.

HANLEY, Justice.

The appeal raises these two issues:

(1) Is the evidence sufficient to show that defendant entered the premises with the intent to steal; and

(2) Did the trial court err in refusing to submit to the jury a verdict based on criminal trespass to dwellings as a lesser included offense?

In order to resolve the first issue it is necessary to state the material facts adduced in evidence.

On January 27, 1971, at about 12:55 p.m., Raymond Hansche was watching television at his home, located at 3312 Rosalind avenue in the township of Mt. Pleasant in Racine county. He thought he heard a rap at the door of his house. The rapping was repeated and, when Mr. Hansche started to the door, he saw a man pass by the windows on the side of the house. He looked out of the window but saw no car in the vicinity at that time. Shortly thereafter, he heard rapping at another door, followed by a crash. He made his way to the solarium, or flower room, and saw standing inside the door a man whom he later identified as defendant Horace Raymond. The window to the door had been broken and the door unlatched. Mr. Hansche asked the intruder, 'What do you want to break the glass for?' Defendant replied, 'I didn't mean to.' 'Well what are you doing here?' asked Mr. Hansche; defendant responded, 'Nothing.' At this time, Mr. Hansche noted that defendant had a screwdriver in his right hand. Defendant used his left hand to deliver a blow to the right side of Mr. Hansche's head, causing him to stumble backwards and fall. When he looked up, he saw defendant running out the door. Soon after defendant's disappearance, Mr. Hansche noted a white or gray Corvair pull out of the alley and drive away.

Mr. Hansche examined the doorway through which defendant had entered the premises and observed scratch marks around the door.

Sufficiency of Evidence.

The standard of review applied by this court in criminal appeals was recently restated in State ex rel. Kanieski v. Gagnon (1972), 54 Wis.2d 108, 113, 194 N.W.2d 808, 811, in the following terms:

'While the state must prove defendant's guilt beyond a reasonable doubt, on appeal this court's review is limited to determining whether the evidence adduced, believed and rationally considered by a jury was sufficient to prove defendant's guilt beyond a reasonable doubt. Reversal is required only when the evidence considered most favorably to the state and the conviction is so insufficient in probative value and force that it can be said as a matter of law that no trier of facts acting reasonably could be convinced to that degree of certitude which the law defines as beyond a reasonable doubt.'

A verdict will not be disturbed on appeal if there is any credible evidence which in any reasonable view supports the finding of the jury. State v. Morrissy (1964), 25 Wis.2d 638, 640, 131 N.W.2d 366. We think the evidence in this case was sufficient to entitle the jury to find, beyond a reasonable doubt, that defendant's entry into Mr. Hansche's residence was with the intent to steal therefrom.

The evidence discloses that defendant rapped at the front door of the house a number of times. When he received no response, he walked around the side of the house and knocked at another door. Apparently concluding that no one was inside the premises, he attempted to pry the door open with a screwdriver. He finally broke a pane of glass, reached in and unlatched the door to gain entry into the house. This was a private residence. It has been noted that one who breaks into a private dwelling may more readily be found to have a felonious intent than one who breaks and enters into a public building. Galloway v. State (1966), 32 Wis.2d 414, 422, 145 N.W.2d 761, 147 N.W.2d 542. Defendant's conduct when interrupted also indicates that he entered the house with an intent to steal. When accosted by the owner of the premises, he offered no explanation for his presence, struck Mr. Hansche across the side of the head and ran from the building. These acts occurred shortly before 1 p.m. Although at common law, the breaking and entering of a dwelling had to occur in the night time in order to constitute a burglary--Perkins, Criminal Law (2d ed.), Burglary, pp. 207, 208, ch. 3, sec. 1 E--no such requirement exists under our present statute. Many...