Sartin v. State
| Decision Date | 30 September 1969 |
| Docket Number | Nos. S,s. S |
| Citation | 44 Wis.2d 138,170 N.W.2d 727 |
| Parties | James SARTIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. John L. SARTIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Mark PIERCE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 73--75. |
| Court | Wisconsin Supreme Court |
On March 29, 1968, after a jury trial, the plaintiffs in error, James E. Sartin, John L. Sartin, and Mark Pierce, were convicted of violating sec. 943.20(1)(a), Stats. (theft), and were sentenced to terms of not more than three years in the Wisconsin state prison at the Green Bay reformatory.
The charges against all three defendants arose out of an incident which occurred on February 14, 1968, in Madison, Wisconsin. On that date, one Robert Harlan, Sr., had parked his 1957 Chevrolet four-door sedan in front of his place of employment at the Rite-Way Auto Service station on East Washington avenue. Mr. Harlan is employed to do general service station work and is also a licensed automobile salesman.
In the fall of 1967, Harlan had purchased the automobile for $180. It was for his own use. After he had purchased the car he had done some minor body repair work on it and had replaced the automatic transmission in it. The car was in generally good condition with only a few minor dents and rust spots on it.
On the day in question, Harlan had parked his car in front of Rite-Way at about seven a.m., removed the keys from the ignition, and had then gone to Chicago on business. That afternoon, at approximately 4:30, one of Harlan's co-workers saw the car being driven from its parking space by three or four men. After ascertaining that Harlan's son had not given anyone permission to take the car, the co-worker called the police to notify them that the car had apparently been stolen.
Shortly thereafter the police observed the 1957 car pulling over to the shoulder on Highway 51 on the east edge of Madison. Four men (the three defendants and a juvenile), were observed getting out of the car and proceeding through a ditch into an open field. The police ordered the men to stop and when they refused, a shot was fired into the air. Thereafter, the defendants were taken into custody. The fourth individual was turned over to juvenile authorities.
It was subsequently discovered the Harlan's car, which the defendants had been driving, had been damaged to such an extent as to make it undrivable.
The defendants were tried and convicted of violating sec. 943.20(1)(a), Stats. The jury also determined the value of the car at the time of the taking to be $125. By writ of error the defendants seek to review their respective convictions.
Charles P. Dykman, Oldenburg & Lent, Madison, for plaintiffs in error.
Robert W. Warren, Atty. Gen., William A. Platz, Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.
Two issues are raised by this review. They are:
1. Was there sufficient evidence introduced to prove intent on the part of the defendants to permanently deprive the owner of the car of his property?
2. Was the jury correct in determining that the value of the car on the date of the taking was $125, making the crime a felony under sec. 943.20(3)(b), Stats.?
Before considering these issues on the merits as raised by our review, it is necessary to consider a preliminary additional issue raised by the state, to wit:
Are the defendants now precluded from raising the question of the sufficiency of the evidence to prove intent when they did not raise it at the trial level either in their motion for a new trial or their motion for judgment notwithstanding the verdict?
The defense counsel moved 'for judgment notwithstanding the verdict and for a new trial.' Asked to state his reasons for asking for a new trial, counsel replied that he did so 'because of errors in the trial' and 'because the verdict is contrary to * * * the evidence.'
Thus, in this case our review is not limited by the well-established rule of this court, that, in the absence of compelling circumstances, on appeal this court will not consider claims of insufficiency of evidence when such claims were not raised before the trial court on a motion for a new trial or to set aside the verdict because of the alleged insufficiency of the evidence. 1
Here there was a motion for a new trial and, although such motion was not specifically bottomed on a claim of insufficiency of the evidence to prove intent to permanently deprive, counsel did urge his motion upon the trial court 'because the verdict is contrary to both the law and the evidence.'
We conclude that, although the motion was not made in as artful a form as it could have been, the motion can be construed so as to raise the issue of the sufficiency of the evidence to prove intent and we proceed to review that question here.
As is discussed in State v. Escobedo, 2 decided today, a motion for judgment notwithstanding the verdict is not enough by itself to protect the defendant so that the defendant can, as a matter of right, raise questions in this court as to the sufficiency of the evidence. There must be a motion for a new trial (as here), or a motion to set aside the verdict because of the alleged insufficiency of the evidence.
Evidence of Intent.
The defendants were charged and convicted under the theft statute, sec. 943.20(1)(a), which provides:
'943.20 Theft. (1) Whoever does any of the following may be penalized as provided in sub. (3):
'(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.'
Thus, it clearly appears that intent to permanently drprive the owner of his property is one of the primary elements of this statute, unlike sec. 943.23, Stats., the so-called 'joyriding' statute. 3
The burden of proof is on the state to prove the defendant guilty beyond a reasonable doubt and as this court has said many times, the test on review by this court is:
Thus it becomes necessary for this court to look at the record to determine whether the jury, acting reasonably, could be convinced beyond a reasonable doubt by the evidence that the defendants had the intent to permanently deprive Harlan of his automobile. 7
The evidence shows that the defendants took Harlan's car without his consent after it had been parked at his place of employment without the keys in the ignition; that after driving the car for a short while, during which time the car was damaged to the extent as to make it undrivable, the defendants abandoned it on the shoulder of Highway 51. Thereafter, when the police attempted to apprehend the defendants, they refused to stop when so ordered and it was necessary for a shot to be fired into the air to stop them.
The state argues that these activities indicate that the intent of the defendants was to steal the car within the meaning of sec. 943.20(1)(a), Stats. Two cases are cited by the state for the proposition that evidence, indicating that a defendant abandoned a damaged car which he had taken without consent, is sufficient to support a conviction of theft, including the intent element thereof.
In Schroeder v. State, 8 the defendants took two automobiles which were later found damaged and abandoned 80 to 100 miles from the place of taking. This court sustained a conviction for larceny under sec. 343.17, Stats.1953, which did not provide that the intent to permanently deprive must be present.
Then in Dascenzo v. State, 9 this court upheld the conviction of the defendant for theft when the evidence showed that the car taken was found damaged and abandoned on the side of a highway about 300 miles from the place of taking.
The defendants attempt to distinguish the instant case from the two prior cases by arguing that here they had possession of the car for only a short period of time and had driven it only a short distance before they abandoned it. They argue that their activities are more consistent with a finding of a violation of sec. 943.23, Stats., the 'joyriding' statute rather than the theft statute.
The distance traveled between the time of taking and the time...
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State v. Myers
...evidence of value of the stolen property is found insufficient to support the penalty imposed by the trial court. Sartin v. State, 44 Wis.2d 138, 170 N.W.2d 727 (1969). Value is of importance "only in determining the applicable penalty upon conviction." State v. Kennedy, 105 Wis.2d 625, 636......
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...an element of the crime of criminal damage to property in that it is only determinative of possible punishments. See: Sartin v. State, 44 Wis.2d 138, 170 N.W.2d 727 (1969), and Peters v. State, 42 Wis.2d 541, 167 N.W.2d 250 The question is whether a jury acting reasonably and construing the......
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