State v. John

• Decision Date: 07 June 1960
• Citation: 11 Wis.2d 1,103 N.W.2d 304
• Parties: STATE of Wisconsin, Respondent, v. Solomon Peter JOHN and Alvin Polcen, Appellants.
• Court: Wisconsin Supreme Court

Page 304

103 N.W.2d 304

11 Wis.2d 1

STATE of Wisconsin, Respondent, v. Solomon Peter JOHN and Alvin Polcen, Appellants.

Supreme Court of Wisconsin.

June 7, 1960.

John W. Reynolds, Atty. Gen., William A. Platz, John H. Bowers, Asst. Atty. Gen., Robert J. Parins, Special Asst. Dist. Atty., of Door County, Green Bay, for respondent.

MARTIN, Chief Justice.

Since 1950 Donald Crass lived alone with his dog in a cabin in the Town of Sturgeon Bay, Wisconsin. His sister, Mrs. Hazel DeLair, usually saw him once or twice a week and sometimes every two weeks. On the night of March 10, 1955, not having seen Crass for some time, she had two of her sons go to his cabin to see if he was ill. The boys came back without having found Crass and Mrs. DeLair returned to the cabin with them. They found the door padlocked and they could not locate Crass or his dog. Checking his mailbox on the highway, they found some literature and a letter from a freight company dated March 4th. The DeLairs notified Sheriff Glesner and on March 11th the bodies of Donald Crass and his dog were discovered in the cabin. Both had been shot in the head and wads from a 16 gauge shotgun were recovered from the wounds.

Donald Crass had been unemployed for some months prior to March of 1955. He last registered for unemployment compensation on February 24, 1955 and he would next have registered on March 3rd. An unopened envelope containing an unemployment check dated February 28, 1955 was found in the cabin.

The cabin was located on a one-track sandy road. Crass collected junk and the cabin was cluttered with paper, boxes, war surplus material, machinery and scrap of all kinds. Papers were strewn over the floor. The sheriff testified that 'Bedding was moved, other articles that were, that he probably he had piled up were knocked over, things had been gone through, probably in a hurry.' He had pried open the padlock on the outside of the door. Inside he found another padlock lying on a heatrola. Water pails inside the cabin contained frozen water. Crass' body was dressed in a heavy mackinaw which was open, a shirt, heavy underwear, trousers and rubber overshoes. The trouser pockets were pulled out.

Mrs. DeLair testified Crass used a padlock on his front door; that she and her brother had entered the cabin together on various occasions and after removing the padlock it was Crass' habit to take it into the house and place it on the heatrola.

At the time the body was discovered the sheriff saw two blue shotgun shells in the bottom of a box back of the cabin door. When traffic officers made an invetory on March 16, 1955 they took the shells and marked them for evidence. They were taken from the top box of three piled upon each other.

Near the end of March Sheriff Glesner obtained from Emil Polcen, father of the defendant Alvin Polcen, a shotgun which he took to the Crime Laboratory for a firearms identification. Later the gun was returned to Glesner, apparently with a report that it had no connection with the crime. It was a 16 gauge, double barreled shotgun which Emil Polcen had purchased from his son Alvin around March 1st. When he acquired it there was no hammer on the left barrel and he made a hammer for it.

This gun was thoroughly reexamined in February of 1957 and Charles M. Wilson, superintendent of the Crime Laboratory, and an employee, Allan Wilimovsky, both testified that the 16 gauge blue shells found in the Crass cabin were fired in the Polcen shotgun, one in each barrel.

Harris Modquin, who had known each of the defendants about six or seven years, testified he saw Alvin Polcen at the National Hotel bar about 10:00 a. m. on the 2nd or 3rd of March, 1955. They drank beer together until about noon and then went in Modquin's car, Polcen driving, to the Polcen home. On the way they saw a deer. Alvin Polcen went into the house while Modquin stayed in the car, and when Polcen came out he was carrying a break type shotgun and was loading it with shells that were shiny as if taken out of a box. When he got to the car he put the gun on the floor in the back seat. On the way back to the city they stopped on a small side road to look for the deer but did not see it.

They returned to the National bar and drank more beer. Modquin asked Polcen to remove the gun from the car and put it in the trunk, giving him the car keys to unlock the trunk. Polcen went out, came right back and then left again to use the car. Modquin remembered Polcen returning to the bar at about 4:00 p. m. He also saw Solomon Peter John at the bar that afternoon, sitting around drinking. Shortly after 4:00 p. m. Modquin went to the car and laid down. After it was dark Alvin Polcen and Solomon Peter John entered the car, Polcen at the wheel. They drove out into the country, made a sharp right turn, passed the Rod and Gun Club and, apparently at the end of the road, turned to the left. After going two or three-fifths of a mile the car was turned around, driven back about 100 feet and stopped.

Polcen and John left the car; Modquin heard the trunk opened and closed; the men walked down the road, past the front of the car. Modquin stayed in the car, partially asleep; he did not keep track of the time. Polcen and John returned, the trunk was opened again and closed, they got into the car and returned to the National bar.

When the three men entered the building Polcen and John went into the men's room. Modquin went into the bar and when the defendants didn't come he went to the men's room and found them talking together. Polcen then gave Modquin $12 and 'said something to the effect to keep quiet.'

All three continued drinking in the bar and about midnight they bought a case of beer and a bottle of whiskey and drove to the home of Donald Lemire. After about ten minutes there Modquin and Polcen left (Modquin did not see John after they arrived at the Lemire home) and drove to Hunky Denny's house. There Modquin laid down on a cot and slept until morning. Modquin and Polcen left about 9:00 a. m. When they got to the car Polcen asked Modquin to look at his trousers because 'he said something about having trouble with a dog.' They drove to the Emil Polcen home where Alvin went into the house; Modquin did not remember that Polcen removed anything from the car. Modquin did not see the Polcen gun again.

Modquin further testified that he met John in the National bar sometime in the summer of 1955. John asked for a ride to a place where he had been working and they had a conversation in the car:

'A. It was general small talk and then I made the remark or it just came out that I asked if he killed that man.

'Q. What was his answer? A. He said yes.'

Both had been drinking and at the time Modquin didn't think too much about what John said; his statement to John about killing Crass was not made in full seriousness.

Modquin testified Polcen had owed him $20 for a few years before March 2, 1955 and he had asked him for it several times, had asked him 'several other times probably during the same day.' When Polcen gave him the $12 he said 'don't be asking me for that money all the time' and he also said to keep quiet.

Exhibit 1, a drawing of the area surrounding the Crass cabin, shows that one traveling from the city on County Trunk 'TT' and making a right turn onto what is known as the Town Road would pass the Rod and Gun Club. The Town Road ends where it is crossed by the small road on which the Crass cabin is located. The distance from the end of the Town Road to the cabin was testified to be approximately 2,000 feet. The road to the cabin is a sandy one-track road. As to its condition early in March, 1955, the evidence shows that there was approximately four inches of snow on the ground and it had probably not been plowed. Crass' sister testified that the condition of the ground, the terrain and the snow was such that a person would have been foolish to walk in there without overshoes.

Appellants argue that the evidence is insufficient to sustain the convictions. The rule is that if there is any credible evidence which in any reasonable view supports a verdict in a criminal case, it cannot be disturbed on appeal. Parke v. State, 1931, 204 Wis. 443, 235 N.W. 775; Garrity v. State, 1941, 238 Wis. 253, 298 N.W. 577; State v. Lombardi, 1959, 8 Wis.2d 421, 99 N.W.2d 829. Appellants rely on the authorities holding that a defendant has the right on the trial to have his guilt determined by the court as well as the jury and the right upon appeal or writ of error to the deliberate opinion and judgment of this court upon the question whether his guilt was sufficiently proven.

The test of the evidence is that of legal sufficiency. In Parke v. State, supra, 204 Wis. at page 444, 235 N.W. at page 775, this court said:

'This right of a defendant who has been convicted of a crime, after due and proper trial, is clearly established. This right, however, is to the solemn and deliberate judgment of this court and each member thereof, on the question whether his guilt was sufficiently proven. In other words, he has the right to demand of this court its solemn and deliberate judgment on the question whether there was adduced upon his trial evidence which, if believed by the jury and rationally considered, was sufficient to prove his guilt beyond a reasonable doubt. This is the extent of this right and the extent of our solemn duty. A defendant has no right to demand that this court and every member thereof be affirmatively convinced of his guilt beyond a reasonable doubt. An appellate court cannot, for obvious reasons, properly function as a trial court or as a jury. When there is a conflict of evidence the weight thereof is for the determination of the jury. As was recently said in State v. Hintz, 200 Wis. 636, 641, 229 N.W. 54, 56: 'the power of the court to disturb the finding of the jury ends with the discovery of evidence to sustain the verdict. In the interest of exactness it should perhaps be...