Smazal v. State
| Decision Date | 07 June 1966 |
| Citation | 31 Wis.2d 360,142 N.W.2d 808 |
| Parties | Victor SMAZAL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Walter H. Piehler, Wausau, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.
The sole issue on this appeal is whether the state failed to prove beyond a reasonable doubt the forgery was committed in Marathon county, where the defendant was tried.
The facts are uncontested. The defendant on October 8, 1964, tendered to Carl Karow, the proprietor of an IGA store in the village of Athens, Marathon county, Wisconsin, a check drawn on the Bank of Athens in the sum of $87 payable to one Victor Smart and purportedly signed by Art Heldt. In answer to the proprietor's question, the defendant identified himself as Victor Smart and said he worked for Art Heldt. The proprietor then cashed the check for the defendant, which was subsequently dishonored as a forgery. It was adequately proved Art Heldt did not employ the defendant and did not sign the check and that the signature of the maker of the check was the handwriting of the defendant. At the conclusion of the state's case, the defendant moved for a dismissal on the ground venue had not been proved to be in Marathon county. This motion was denied but at the request of the defendant, an instruction on the burden of proof of venue was given to the jury which found the defendant guilty. The defendant's motions after verdict were denied and the defendant was sentenced to an indeterminate term of not more than seven years in the state reformatory.
Although there is a split of authority on whether venue, like the elements of a crime, must be proved beyond a reasonable doubt, Wisconsin holds that venue must be so proved. State v. Wiedenfeld (1938), 229 Wis. 563, 282 N.W. 621; Davis v. State (1908), 134 Wis. 632, 115 N.W. 150. By sec. 956.01(1), Stats., criminal actions are to be tried in the county where the crime was committed except as otherwise provided in that section. 'Forgery' is defined in sec. 943.38, Stats., as:
'(1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports of have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, may be fined not more than $5,000 or imprisoned not more than 10 years or both:
(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or * * *.'
It was therefore incumbent upon the state to prove the defendant falsely made the check in Marathon county with intent to defraud. It must be admitted there is no eyewitness testimony the check was made in Marathon county, but the lack of direct proof does not necessarily mean venue was not proved beyond a reasonable doubt.
Forgery is not such a crime as is usually committed in the presence of others and direct testimony is seldom available. As we stated in State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379, commenting on the sufficiency of circumstantial evidence, Thus while the burden of proof is to convince beyond a reasonable doubt, it has been held that venue may be established by proof of facts and circumstances from which it may be inferred. Kellar v. State (1921), 174 Wis. 67, 182 N.W. 321 (adultery and fornication); State v. Jackson (1935), 219 Wis. 13, 261 N.W. 732 (); Farino v. State (1931), 203 Wis. 374, 234 N.W. 366 (homicide); Piper v. State (1930), 202 Wis. 58, 231 N.W. 162 (); see also 23 C.J.S. Criminal Law § 914, pages 606 and 610.
Defendant claims the circumstantial evidence was not sufficient to prove venue beyond a reasonable doubt and the only evidence which can be considered...
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Reid v. WARDEN, CENT. PRISON, RALEIGH, NC, C-C-88-116-P.
...(1972); State v. Loucks, 28 Ohio App.2d 77, 274 N.E.2d 773 (1971); Bieber v. State, 8 Md. App. 522, 261 A.2d 202 (1970); Smazal v. State, 31 Wis.2d 360, 142 N.W.2d 808 (1966). This Court could find only one state court which specifically condemned the use of this presumption. See, State v. ......
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State v. Anderson
...Laws Ann. ch. 227, § 57A; Idaho Code § 19-304(3); Ky. Rev. Stat. § 452.620; Fla. Stat. Ann. § 910.03)). 4 See Smazal v. State, 31 Wis. 2d 360, 363-64, 142 N.W.2d 808 (1966); and State v. Swinson, 2003 WI App 45, 261 Wis. 633, 646, 660 N.W.2d ...
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State v. Anderson, 2005 WI 54 (Wis. 5/4/2005)
...Laws Ann. ch. 227, § 57A; Idaho Code § 19-304(3); Ky. Rev. Stat. § 452.620; Fla. Stat. Ann. § 910.03)). 18. See Smazal v. State, 31 Wis. 2d 360, 363-64, 142 N.W.2d 808 (1966); and State v. Swinson, 2003 WI App 45, 261 Wis. 633, 646, 660 N.W.2d ...
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State v. Wardenburg
...488, 493; State v. Domer, 1 Ohio App.2d 155, 204 N.E.2d 69, 79; State v. Cooksey, 242 Or. 250, 409 P.2d 335, 336; and Smazal v. State, 31 Wis.2d 360, 142 N.W.2d 808, 809. Among jurisdictions holding only a preponderance of evidence is required are: Nobles v. State, 189 Ark. 472, 74 S.W.2d 2......