State v. Garbe

• Decision Date: 15 November 1949
• Citation: 39 N.W.2d 743,256 Wis. 86
• Parties: STATE v. GARBE.
• Court: Wisconsin Supreme Court

256 Wis. 86

39 N.W.2d 743

STATE

v.GARBE.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Walter Garbe was convicted in the Municipal Court of Rock County, Ralph F. Gunn, J., for killing a dog in violation of St.1947, § 343.47, and he appealed.

The Supreme Court, Brown, J., reversed the judgment, holding that the evidence was insufficient to prove defendant's guilt beyond a reasonable doubt.

Defendant-appellant was convicted in the municipal court of Rock county, February 14, 1949, for killing the dog of the complaining witness, Finley, on September 7, 1948, in violation of sec. 343.47, Stats., and has appealed. Facts are stated in the opinion.

McGowan, Geffs, Geffs & Block, Janesville, for appellant.

Thomas E. Fairchild, Atty. Gen., William A. Platz, Asst. Atty. Gen., Robert D. Daniel, Dist. Atty., Janesville, for respondent.

BROWN, Justice.

It is undisputed that Finley's dog was shot and killed in or near the public highway adjoining Finley's field after sundown but while it was still light. The questions involved and decisive here are whether or not the defendant was the person who shot it, and whether the dog was wearing a license tag. Since a violation of sec. 343.47, Stats., constitutes a crime, guilt must be established beyond a reasonable doubt.

Complainant testified that he went to his field in the early evening in an automobile to get a calf, and the dog accompanied him. While complainant was so engaged, the dog chased a squirrel or other animal across the road and up a tree. While the dog was barking Finley heard two shots, went as quickly as possible to the roadside and saw a man walking away carrying a gun. The dog was dying. Finley testified that he was approximately 10 rods away from this person, who had his back partly turned, but he was positive it was the defendant. He called but the man made no reply and walked away. Finley could see his face. The two parties had adjoining farms and had been friends and neighbors a long time. Finley also testified that the dog was licensed and that it was wearing its collar and tag at the time it was killed. He rolled the dog off the road and took the calf home, and the next day his son, Francis, got the dog and brought it home where the hired man or one of Finley's sons removed the collar from the dog and Finley removed the tag from the collar. A license tag was received in evidence but, because of his poor eyesight, Finley could not identify it as the one which had been on the collar and it remained unidentified. Finley admitted inconsistencies between his testimony at the trial and upon the preliminary examination relative to such matters as to whether the dog ran beside the automobile or rode in it on the way to the field, and how the collar came to be taken from the dog and the tag from the collar.

Finley's son, Francis, 37 years old, testified that he brought the body of the dog from the roadside to the home the morning after it was shot. He thought the dog had a collar on. The veterinarian, who made a post-mortem examination of the dog, testified that its wound was such that it could have moved only four or five feet after being shot and death came almost immediately.

Defendant denied that he shot the dog and denied that he was on the highway after sundown or that Finley had called to him. He testified that on the following morning a man named Jensen, who delivered bread, told him that...