Shawano County v. Wendt

• Decision Date: 30 April 1963
• Parties: SHAWANO COUNTY, Plaintiff-Respondent, v. Peter G. WENDT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 300

121 N.W.2d 300

20 Wis.2d 29

SHAWANO COUNTY, Plaintiff-Respondent, v. Peter G. WENDT, Defendant-Appellant.

Supreme Court of Wisconsin.

April 30, 1963.

Douglas D. Winter, Shawano, for appellant.

Frederic C. Eberlein, Asst. Dist. Atty., Shawano, for respondent.

HALLOWS, Justice.

At about 2 A.M. on September 9, 1961, the defendant Peter G. Wendt and one Arden Schmoldt were found intoxicated in the defendant's automobile which was parked on the shoulder of Highway 29 about two and one-half miles east of the city of Shawano. The headlights of the car were on, the ignition keys were lying on the front seat, the defendant was sitting in the driver's seat slumped over the steering wheel asleep, and Schmoldt was lying asleep on the front seat with his feet out the window and his head near the defendant. The police officer who found them called for additional help and the defendant and Schmoldt were taken to the county jail.

At the trial the defendant put in no defense and on this appeal contends the evidence fails to sustain the finding of the trial court that he violated the county ordinance. Two elements are necessary to prove a violation of the ordinance or of a similar statute: (1) the person charged was operating a vehicle on the highway, and (2) he was under the influence of liquor. Milwaukee v. Richards (1955), 269 Wis. 570, 69 N.W.2d 445. There appears to be no issue that the second element was proved. Four police officers testified to the intoxicated condition of both the defendant and Schmoldt. It is the legal sufficiency of the evidence whether the defendant operated the vehicle on the highway which is questioned on this appeal. Since the violation was of an ordinance and not of a criminal statute, the test on review is whether the trial court's finding is against the great weight and clear preponderance of the evidence. For the scope of the review in a criminal case, see State v. Wickstrom (1961), 14 Wis.2d 416, 111 N.W.2d 176; State v. John (1960), 11 Wis.2d 1, 103 N.W.2d 304; and Johns v. State (1961), 14 Wis.2d 119, 109 N.W.2d 490.

Schmoldt testified that on September 8th he went to Clintonville about noon to see the defendant. The two of them left Clintonville in the defendant's car with the defendant driving to visit a farmer in Shawano county. After seeing the farmer, the defendant and Schmoldt went to a tavern in Cecil where they stayed approximately three hours playing cards for beer. Schmoldt testified they drank 10 to 12 beers or 8 to 12 beers, and finally between 5 and 15 beers, not indicating whether it was glasses, bottles or steins. Upon leaving the tavern defendant drove and said he was taking the back road 'because the cops wouldn't bother him so much.' Apparently between 7 and 8 P.M., they stopped at a restaurant where each of them drank 'roughly four to six martinis,' although the defendant may have had more. The record is not clear whether they had anything to eat. Schmoldt further testified he did not feel well while at the restaurant so he left and sat on the passenger side of the defendant's car. Sometime later, probably after 10 P.M., the defendant and Schmoldt departed from the tavern with the defendant driving. The next thing Schmoldt remembered was the defendant saying 'he seen four headlights and he was going to pull off to the side and sleep awhile and he was wondering if I had a set time to get home and I said 'No." About 1:30 in the morning a Shawano county traffic officer saw the defendant's car parked on the shoulder of Highway 29 but did not stop to investigate. However, when he returned one-half hour later he again saw the defendant's car and stopped.

The defendant contends all the evidence in the case is circumstantial and insufficient to sustain the finding of a violation of the ordinance, relying on State v. Hall (1955), 271 Wis. 450, 73 N.W.2d 585. The Hall Case involved a criminal statute and this court held the offense was not proved beyond a reasonable doubt, because the circumstantial evidence was not sufficiently strong without corroborating evidence to exclude every reasonable theory of innocence and to overcome the presumption of innocence to which the defendant was entitled. Here the defendant was charged with a violation of a county ordinance and the burden of proof is not to convince the trier of the facts beyond a reasonble doubt of the defendant's guilt but only of a violation by a clear preponderance of the evidence. Not do we agree the only evidence is circumstantial although circumstantial evidence may speak louder than words. State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379. The defendant asks us to disregard the corroborating testimony of Schmoldt on the theory the witness was so intoxicated he could not possibly remember any of the events leading up to his being found in the car. We cannot accept the premise on this record that a person cannot remember some of...