Smith v. State
| Decision Date | 03 April 1928 |
| Citation | 195 Wis. 555,218 N.W. 822 |
| Parties | SMITH v. STATE. |
| Court | Wisconsin Supreme Court |
Error to the Municipal Court for Langlade County; Hon. A. N. Whiting, Judge.
Harmon H. Smith was convicted of burglary, and he brings error. Affirmed, and cause remanded.––[By Editorial Staff.]
On the 30th day of July, 1927, the store of the Langlade Lumber Company, located in the town of Ainsworth, Langlade county, was burglarized. The alleged burglars were the plaintiff in error, hereinafter called the defendant, one Casperson, and one Born, and these three parties, in order to further the perpetration of their criminal operations, temporarily occupied as a residence and headquarters a certain shack located some eight or nine miles distant from where this alleged burglary was committed. After the commission of the offense charged, the stolen property was discovered upon the premises occupied by the alleged burglars, and, in an effort to escape from the authorities, the said Born was shot and killed.
The defendant and Casperson were jointly informed against and tried on the above charge. There were two trials. On the first there was a disagreement of the jury. A motion was duly made on the first trial by the defendant Smith, for a separate trial, which motion was denied. Before entering upon the second trial, the defendant again moved for a separate trial, which was also denied.
The defendant Smith, in his own defense, testified upon each trial, and it appears from his testimony that for a period of four or five years prior to the commission of the burglary he had been engaged by a private detective agency to perform special detective work; that he was a man with a high school education, and possessed some university credits; that some time prior to the happening of the burglary a murder was committed in Kenosha county, and that the perpetrator of the offense had not been detected; that notice of a reward of $2,500 was published for the detection, arrest, and conviction of the offender; that the defendant Smith entertained strong suspicions that Born was guilty of the murder; and that, in order to obtain a confession, it would be necessary to gain the implicit confidence of the alleged suspect by associating with him, and by participating in his criminal raids and conduct. The defendant further admits that every element of the crime of burglary is clearly established in this case, excepting the essential element of intent.
The record also conclusively shows that, in a number of expeditions resorted to by the three persons above mentioned, the evidence is such as to bring home to the parties engaged therein, knowledge that their purpose was criminal in its nature. Before entering upon the criminal expeditions above referred to, the defendant did not at any time notify the public authorities of his alleged object and purpose of his participation in the unlawful acts, nor did he make them known to any one until after his arrest, when he defended the criminal action upon the ground of lack of intention.
Upon the second trial the jury found the defendant Smith guilty, and, a motion for a new trial made having been denied, this writ of error was issued to review the proceedings in the trial court.Vernon J. McHale, of Antigo, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Earl J. Plantz, Dist. Atty., of Antigo, for the State.
[1] The defense of the defendant Smith is extremely novel, and counsel in their diligent search for cases based on similar facts have found and submitted none. The defense of lack of intention frequently arises in prosecutions for forgery, for uttering forged paper, for receiving stolen property, and other similar offenses, but there certainly seems to be a marked dearth of authorities on the subject of burglary, where the breaking and entry is in the nighttime, and where the person charged with the offense actively participates in the removal of the goods, and at the time of his arrest is found in possession of part of the stolen property. But, be that as it may, the element of intention must be shown in a criminal case like this, and proven beyond a reasonable doubt.
The first error upon which defendant's counsel relies is based upon the refusal of the court to grant the defendant a separate trial, for the reason that the defendants advanced and relied upon separate, distinct, and antagonistic defenses. As has already been said, the defense of the defendant Smith consisted of his claim that there was lacking the criminal intent while participating in the alleged burglary, and the defendant Caspersonadvanced and pressed as his defense an alibi.
[2][3] The granting or refusal of a separate trial of defendants in a criminal case rests largely in the discretion of the court, where the offenses arise out of the same transaction. Joint trials ordinarily...
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