State v. Hall, S
| Decision Date | 01 February 1972 |
| Docket Number | No. S,S |
| Citation | 53 Wis.2d 719,193 N.W.2d 653 |
| Parties | STATE of Wisconsin, Respondent, v. Preston J. HALL, Appellant. tate 34. |
| Court | Wisconsin Supreme Court |
The defendant, Preston J. Hall was charged with attempted burglary under secs. 943.10(1)(a) and 939.32, Stats. He waived a jury trial and was found guilty, as charged, by the court on November 18, 1970, and sentenced to a term of not more than five years in the Wisconsin State Reformatory at Green Bay.
Subsequently the defendant moved that the judgment be vacated and that he be discharged. This motion was denied and defendant appeals from the judgment.
Anthony K. Karpowitz, Legal Aid Society, Criminal-Appellate Div., Milwaukee, for appellant.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.
The single issue on this appeal is whether the evidence is sufficient to establish an intent to steal.
The burglary statute under which the defendant was charged is sec. 943.10(1) (a), Stats. It provides as follows:
'BURGLARY. (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than 10 years:
'(a) Any building or dwelling.'
The attempt statute, sec. 939.32(2), provides:
'An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.'
There are three essential elements in the crime of burglary under the statute,--(1) an intentional entry of the building, (2) without the consent of the person in lawful possession, and (3) with an intent to steal. 1
The defendant, in effect, concedes that the evidence is sufficient to establish the first two elements of burglary, namely, an intentional entry of a dwelling without consent of the person in lawful possession. He does, however, forcefully assert that evidence is insufficient to establish the third element,--an intent to steal--as charged in the information.
The evidence adduced at the trial reveals the following:
The building in question was a two-story dwelling located at 2650 North 5th street in the city of Milwaukee. The lower floor was in the lawful possession of Mrs. Jeanette Riley (also referred as Janet Riley). The incident took place in the early afternoon hours of July 22, 1969.
Two witnesses, Dorothy Williams and Jack Norton, who both knew the defendant Preston Hall, testified that they saw him take off a ground floor storm window with the aid of a butter knife, open the window and enter the building. Neither of them saw him come out out the building. Norton further testified that prior to the entry, Hall asked him if he (Norton) would 'help him go into the house.' Norton refused and stated Hall did not tell him why he was going into the house.
Mrs. Riley did not testify at the trial but the parties, through their attorneys, did stipulate that Mrs. Riley was the lawful occupant; that she was not home between 10:30 a.m., and one p.m., and that she had not given the defendant or anyone else permission to enter her home. The stipulation did not indicate that anything was stolen nor attribute any activity of any kind inside the dwelling to the defendant Hall.
Two other witnesses testified for the state, Mamie Williams and Police Officer Kenneth A. John. Mrs. Williams is the mother of Dorothy Williams and lives in the house next door. She knew Hall and saw him on July 22nd. Officer John's only testimony was that he was called to the scene and saw a storm window that had been removed and placed alongside the building.
The defendant testified in his own behalf. He stated he knew the witnesses Norton, Dorothy Williams and Mrs. Riley and that he had seen Mrs. Riley on the street at 12:30 in the afternoon. He further testified that he did not enter Mrs. Riley's house.
The state concedes there is no direct evidence of an intent to steal but contends that the evidence here is sufficient to support an inference that the defendant unlawfully entered with an intent to steal. Our opinion in Strait v. State, supra, is cited as authority to sustain this position.
This court has in St...
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Gilbertson v. State, S
...charging burglary. This court has held that intent to steal may not be inferred from breaking and entering alone. State v. Hall (1972), 53 Wis.2d 719, 193 N.W.2d 653; Bethards [69 Wis.2d 595] v. State (1970), 45 Wis.2d 606, 173 N.W.2d 634; State v. Harris (1968), 40 Wis.2d 200, 161 N.W.2d 3......
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Anderson v. State
...portion of a truck or trailer, (2) without consent of the person in lawful possession, and (3) with intent to steal. State v. Hall (1972), 53 Wis.2d 719, 720, 193 N.W.2d 653. The evidence in the record fulfills these requirements and is sufficient to sustain the Pursuant to verdict of guilt......
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Hebel v. State, S
...of both crimes without violating sec. 939.66, Stats. Raymond v. State (1972), 55 Wis.2d 482, 487, 198 N.W.2d 351; State v. Hall (1972), 53 Wis.2d 719, 720, 193 N.W.2d 653; Champlain v. State (1972), 53 Wis.2d 751, 755, 193 N.W.2d 868; Hawpetoss v. State (1971), 52 Wis.2d 71, 77, 187 N.W.2d ......
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LaTender v. State, 75-852-CR
...if the only evidence is of breaking and entering, the inference of guilt referred to in Strait does not arise. See State v. Hall, 53 Wis.2d 719, 193 N.W.2d 653 (1972), and Gilbertson v. State, 69 Wis.2d 587, 230 N.W.2d 874 (1975). Here there was evidence that the desk had been pilfered and ......