State v. George, s. S

Citation230 N.W.2d 253,69 Wis.2d 92
Decision Date16 June 1975
Docket NumberNos. S,s. S
PartiesSTATE of Wisconsin, Appellant, v. Louis GEORGE, Respondent. STATE of Wisconsin, Appellant, v. Robert TOLLEFSON, Respondent. tate 157, 158.
CourtWisconsin Supreme Court

The state appeals from orders dismissing twenty-nine of thirty felony commercial gambling counts in a complaint against the defendant Louis George and seven of ten felony commercial gambling counts in a complaint against the defendant Robert Tollefson.

Bronson C. La Follette, Atty. Gen., J. Douglas Haag, Asst. Atty. Gen., Madison, for appellant.

Patrick R. Doyle, La Crosse, for respondents.

BEILFUSS, Justice.

Prior to the preliminary hearings, counsel for the defendants filed motions to dismiss the complaints upon the grounds of duplicity, multiplicity, vagueness and indefiniteness. The trial court dismissed all but Count Five of the George complaint and all but Counts Two, Five and Ten of the Tollefson complaint.

The statute under which George and Tollefson were charged is as follows:

'945.03 Commercial Gambling. Whoever intentionally does any of the following is engaged in commercial gambling and may be fined not more than $5,000 or imprisoned not more than one year or both:

'. . .

'(2) For gain, receives, records or forwards a bet or offer to bet or, with intent to receive, record or forward a bet or offer to bet, possesses facilities to do so.'

The complaint against Louis George contained thirty counts of 'feloniously, intentionally and for gain,' 'regularly' through a period of several months, receiving bets on various professional and collegiate athletic events from specifically identified individuals contrary to sec. 945.03(2), Stats. 1 Only Count Five identified a specific athletic event, the 1974 Super Bowl, as the subject of the bet. Each of the other counts alleges that the defendant did 'receive bets,' 'regularly,' on either 'basketball games' (Count One), 'professional football games' (Counts Two, Three, Four, Seven, Nine, Eleven, Thirteen, Sixteen, Twenty-One, Twenty-Three, Twenty-Four, Twenty-Six, Twenty-Eight, Thirty), or 'college football games' (Counts Six, Eight, Ten, Twelve, Fourteen, Fifteen, Seventeen, Eighteen, Nineteen, Twenty, Twenty-Two, Twenty-Five, Twenty-Seven, Twenty-Nine).

Each count stated a period of time during which bets were received. Only Count Five alleged the receipt of only one bet, the stated time of its receipt being 'on or about January 16, 1974.' The time periods during which bets were received, alleged in the complaint, were from on or about: February 15, 1973 to February 30, 1973 (Count One); September 15, 1971 to January 15, 1972 (Counts Two, Eight, Nine, Fourteen, Twenty, Twenty-One); September 15, 1972 to January 15, 1973 (Counts Three, Fifteen, Sixteen, Twenty-Two, Twenty-Three, Twenty-Five, Twenty-Six); August 15, 1973 to October 15, 1973 (Count Four); September 15, 1970 to January 15, 1971 (Counts Six, Seven, Thirteen); September 15, 1972 to October 30, 1972 (Counts Ten, Eleven); September 30, 1971 to December 15, 1971 (Count Seventeen); September 30, 1972 to December 15, 1972 (Count Eighteen); September 30, 1973 to December 15, 1973 (Count Nineteen); during the month of August 1973 (Count Twenty-Four); September 15, 1973 to January 15, 1974 (Count Twenty-Eight); and September 15, 1973 to January 1, 1974 (Counts Twenty-Nine, Thirty).

The complaint against Robert Tollefson contained ten counts. Count Two charged the defendant with using, between November 1, 1973 and December 30, 1973, 'a wire communication facility: to wit, a telephone, for the transmission of information assisting Gerald L. Peterson in placing bets on football games,' contrary to sec. 945.03(7), Stats.

Counts Five and Ten each charged that Tollefson did 'receive a bet' on the 1974 Super Bowl. Each of these two counts specifically identified the bettor, and each count alleged that such bet was received 'on or about January 15, 1974.'

The remaining counts of the Tollefson complaint charged that he did 'receive bets,' 'regularly,' on 'football games' (Counts One, Nine), 'professional football games' (Counts Three, Four, Eight), and 'college football games' (Counts Six, Seven). Each count specifically identified the bettor. The alleged times during which these bets were received were 'on or about' November 1, 1973 to December 30, 1973 (Count One); November 1, 1972 to January 15, 1973 (Count Three); September 15, 1973 to January 1, 1974 (Count Four); September 15, 1972 to January 1, 1973 (Counts Seven, Eight); November 1, 1973 to January 15, 1974 (Count Nine); and 'during the month of November, 1973' (Count Six).

Generally, where time of commission of a crime is not a material element of the offense charged, it need not be alleged with precision. Hawkins v. State (1931), 205 Wis. 620, 624, 238 N.W. 511. 2 However, the scope of the state's latitude in this respect is restricted by due process and by art. I, sec. 7 of the Wisconsin Constitution and the sixth amendment to the United States Constitution which guarantee to an accused the right to be informed of 'the nature and cause of the accusation.'

In Holesome v. State (1968), 40 Wis.2d 95, 102, 161 N.W.2d 283, 287, this court stated the test for gauging the adequacy of a complaint in light of such constitutional right:

'. . . In order to determine the sufficiency of the charge, two factors are considered. They are whether the accusation is such that the defendant determine whether it states an offense to which he is able to plead and prepare a defense and whether conviction or acquittal is a bar to another prosecution for the same offense.'

Likewise, in Martin v. State (1973), 57 Wis.2d 499, 506, 204 N.W.2d 499, 502, this court reiterated the same two-pronged test and noted:

'. . . the right to be clearly apprised of the criminal charge is constitutional in scope and cannot be avoided by more simplified rules of modern pleading, . . ..' 3

As to the potential for double jeopardy, a problem arises by virtue of the expansive allegations as to time in this case. This is so because, under the state's theory, each of the dismissed counts charges a continuing crime. The established rule, as stated in 1 Anderson, Wharton's Criminal Law and Procedure (1957), p. 351, sec. 145, is that:

'Only one prosecution may be had for a continuing crime. When an offense charged consists of a series of acts extending over a period of time, a conviction or acquittal for a crime based on a portion of that period will bar a prosecution covering the whole period. . . .' 4

In Anderson v. State (1936), 221 Wis. 78, 87, 265 N.W. 210, 214, this court adopted the following test to determine whether, subsequent to a prosecution on an indictment (or complaint), another prosecution on a different indictment (or complaint) would entail a violation of the right against double jeopardy: if ". . . 'facts alleged under either of the indictments would, if proved under the other, warrant a conviction under the latter,' . . .' double jeopardy is involved. Application of this test to the dismissed counts demonstrates that if a prosecution were conducted on such counts, subsequent prosecutions involving the same parties and the same subjects of betting, during the same time periods, would be barred.

In the George Case, twenty-nine of the thirty counts allege that George received bets for gain regularly from periods of one month to several months from September 15, 1971 to January 1, 1974. The complaints named eight individuals as the bettors. All but one of the eight bettors are named in two or more counts. Several of the counts name the same bettor for the same period of time but identify the bets as being on college football games or professional football games without any identification as to what particular college or professional game.

If the various counts of the complaint allege a series of continuous crimes they are multiplicitous because they divide a single charge (continuous commercial gambling) into several counts. If the several counts allege single bets they are duplicitous in that they join several transactions in a single offense, 5 with the possibility that some but not all members of a jury could believe defendant guilty of one offense and others believe him guilty of another. A guilty verdict of all the jurors could be returned with the whole jury not in agreement as to the essential 6 facts.

An equally difficult problem is presented by the other prong of the Holesome test: Do the various counts state offenses to which the defendants can adequately 'plead and prepare a defense?' There are two factors inherent in the dismissed counts which could likely contribute to the difficulty of defending the case. The first is that the counts are duplicitous, 7 i.e., each count in reality alleges two or more crimes. Secondly, each count covers an expansive period of time without stating at what point or points during that period the alleged crimes were committed. These factors are, of course, inextricably related. The defendants...

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  • State v. Sorenson
    • United States
    • Wisconsin Supreme Court
    • March 22, 1988
    ...was committed. As a result, he claims this deprived him of a full ability to plead and prepare a defense. In State v. George, 69 Wis.2d 92, 96, 230 N.W.2d 253, 256 (1975), this court held that the time of commission of a crime need not be alleged with precision where it is not a material el......
  • State v. Lomagro
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    • July 1, 1983
    ...person at substantially the same time. Duplicity is the joining in a single count of two or more separate offenses. State v. George, 69 Wis.2d 92, 99, 230 N.W.2d 253 (1975); Harrell v. State, 88 Wis.2d 546, 555, 277 N.W.2d 462 (Ct.App.1979). The purposes of the prohibition against duplicity......
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