State v. Hutnik

• Decision Date: 28 June 1968
• Citation: 39 Wis.2d 754,159 N.W.2d 733
• Parties: STATE of Wisconsin, Appellant, v. Willis J. HUTNIK, Respondent.
• Court: Wisconsin Supreme Court

Page 733

159 N.W.2d 733

39 Wis.2d 754

STATE of Wisconsin, Appellant, v. Willis J. HUTNIK, Respondent.

Supreme Court of Wisconsin.

June 28, 1968.

Bronson C. La Follette, Atty. Gen., William A. Platz and Robert E. Sutton, Asst. Attys. Gen., Madison, for appellant.

Arthur A. Cirilli, Superior, for respondent; William L. McCusker, Madison, of counsel.

HEFFERNAN, Justice.

The first ground upon which the court dismissed the complaint, that the statute was unconstitutionally vague, has already been resolved by this court. We held in State v. Alfonsi (1967), 33 Wis.2d 469, 147 N.W.2d 550, that the statute was sufficiently clear and definite to withstand this constitutional attack.

The second basis for the judge's dismissal, that there was a failure of proof, is, however, squarely before us. It is the claim of the state that sufficient facts were presented to allow the case to go to the jury and that, in any event, there must be new trial because the judge excluded certain evidence that, as the state contends, would clearly have supplied any deficiency in proof.

The evidentiary errors that are claimed by the state to be of controlling importance were the judge's refusal to permit the testimony of Edward E. Hoebel and the refusal to permit the use of Anthony Wise's grand-jury testimony either to refresh his recollection or to impeach him.

We conclude that the court erred in the exclusion of the testimony of Edward E. Hoebel and that the exclusion of such evidence was prejudicial to the state.

The record makes it clear that, some time prior to the trial, the state apprised defense counsel of the purport of Hoebel's proposed testimony. Hoebel was called to the stand and, at the request of defense counsel, the parties retired to the judge's chambers, where objection was made to Hoebel's testimony. At that time the state made the following offer of proof:

'MR. PLATZ: Well, we will prove by this witness that last fall during the adjourned session of the legislature he had a conversation by telephone with Mr. Hutnik regarding Bill 933--A, that Mr. Hutnik was the one who called Mr. Hoebel, that Mr. Hutnik made a request of Mr. Hoebel for some money in connection with Bill 933--A, that he used some slang expression for money which the witness Hoebel does not recall, but he understood what it meant and that he then informed Mr. Hutnik that his association had nothing to give as an association or himself on the accelerated highway bill and told Mr. Hutnik that he did not know who would be giving out any cash or money on a bill like this unless it was a chamber of commerce. And he said they didn't have it and that his association certainly was not giving out anything, to which Mr. Hutnik responded in substance, 'Well, I am going to have to vote against the bill.' That Mr. Hoebel then said, 'That is fine. We don't care enough about it. If you want to do that, that is your privilege,' or words to that effect.'

In support of this offer of proof Mr. Platz, assistant attorney general, stated that the purpose of the testimony was 'to show the intent, scheme and plan of Mr. Hutnik to obtain money from people to support this bill.'

Over the objections of defense counsel, the trial judge rules that the testimony offered was competent and that Hoebel could proceed with his testimony.

It soon developed, however, that Hoebel was unable to tell with exactitude the date when he was allegedly solicited by Hutnik. He did not know whether it was before or after October 18th, the date of the offense (on or about) with which Hutnik was charged. It was established however, that the contact was made sometime in October and was during a special fall session of the legislature. ¹ When the lack of preciseness in Hoebel's testimony became apparent, counsel for the defendant objected to further testimony on the basis that it was not established that the conversation took place prior to October 18th, the alleged date of the crime. The court upheld this objection stating, 'I will not permit any testimony from this witness unless it predates October 18, 1966(5).'

The trial judge's oral decision at the time of the dismissal of the complaint was devoted primarily to the question of whether or not the statute was unconstitutionally vague. No reference was made therein to the offered testimony of Edward E. Hoebel. The clear purpose of the testimony was to establish Hutnik's intent and plan to obtain money from persons in exchange for his promise to support the bill. This testimony if believed would tend to show that he had acted in a similar manner in regard to the same bill and on a date closely related in time to the offense charged. Judge Murphy, however, predicated his refusal to admit the evidence on the basis that the alleged conversation was not shown to have taken place prior to October 18th. This, however, is not the test that is properly to be applied in making the determination of the admissibility of other events or occurrences that may show intent. The question is one of remoteness and not of chronology. 1 Wharton, Criminal Evidence (12th ed.), p. 563, sec. 245, points out that 'Evidence of offenses committed subsequently to the crime under prosecution may be admitted, as in the case of prior offenses, if not too remote.' This court in Herde v. State (1941), 236 Wis. 408, 413, 295 N.W. 684, stated:

'In proof of criminal intent, the conduct of a defendant on other occasions closely connected in point of time and plan may at times be relevant to throw light on the defendant's motives and intentions while doing the act complained of. Smith v. State, 195 Wis. 555, 560, 218 N.W. 822; State v. Meating, 202 Wis. 47, 50, 231 N.W. 263. 'The intention with which a particular act is done often constitutes the burden of the inquiry, and to prove the intent it becomes necessary, in many instances, to extend the examination beyond the particular transaction concerning which the accused is upon trial. For the purpose, therefore, of proving intent, not of proving the act itself, it is often permissible to show other criminal transactions of the same sort springing from like mental conditions.' 2 Jones, Evidence (2d ed.), p. 1161, sec. 624.'

State v. Lombardi (1959), 8 Wis.2d 421, 99 N.W.2d 829, involved a charge against a sheriff for a wilful dereliction of duty. A portion of the evidence tended to prove that the defendant had knowledge of the operation of a house of prostitution at a time subsequent to the date of the offense charged. It was contended that this was inadmissible in evidence because this testimony only established the defendant's knowledge of prostitution subsequent to the date charged in the information. The court quoted with approval, p. 437, 99 N.W.2d p. 839, the instruction to the jury:

"Evidence of the commission of other offenses is admissible where the evidence tends to establish some ingredient of the offense charged such as knowledge, intent system, or design, and also to show that the crime charged is a part of a scheme or...