State v. Johnson

• Decision Date: 28 April 1936
• Citation: 267 N.W. 14,221 Wis. 444
• Parties: STATE v. JOHNSON.
• Court: Wisconsin Supreme Court

221 Wis. 444

267 N.W. 14

STATE

v.JOHNSON.

Supreme Court of Wisconsin.

April 28, 1936.

Appeal from a judgment of the Circuit Court for Waupaca County; Byron B. Park, Judge.

Reversed.

Prosecution of Orville Johnson on six counts. The first count charged that on February 23, 1935, he and Frank Nerod did assault and feloniously rob, steal, and take from the person of one John Dempsey and from the cash register belonging to and in the custody of one Theresa Selvog lawful money being then and there armed with a dangerous weapon, to wit, a loaded revolver, with intent, if resisted, to kill or maim the person robbed, contrary to the provisions of section 340.39, Stats. The second charged that Johnson and Nerod aided their confederates, Elroy Schiekert and Thomas Konczal, in committing the felony, assault, and robbery contrary to section 340.39, Stats., as charged in the first count; and the third count charged that before the felony and robbery, contrary to section 340.39, Stats., as charged in the first count was committed, Johnson and Nerod unlawfully and feloniously counseled, advised, and procured Schiekert and Konczal to commit that felony in that manner and form and by those means. The fourth count charged that Johnson and Nerod assaulted Dempsey and Mrs. Selvog while armed with a dangerous weapon, to wit, a revolver, with intent to rob them, and did rob them of lawful money contrary to the provisions of section 340.40, Stats. The fifth count charged that Johnson and Nerod aided their confederates, Schiekert and Konczal, in committing that felony and crime with intent to rob, in the manner and form described in the fourth count, contrary to section 340.40, Stats.; and the sixth count charged that Johnson and Nerod unlawfully and feloniously counseled, advised, and procured Schiekert and Konczal to commit that felony and crime in that manner and form contrary to section 340.40, Stats. Johnson pleaded not guilty to each count. Upon the trial, at the conclusion of the testimony, the court instructed the jury and submitted forms for a verdict only in relation to the first count. The jury found the defendant guilty, and the court approved the verdict and entered judgment convicting and sentencing Johnson on that count. He appealed.Eberlein & Larson, of Shawano, for appellant.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Wendell McHenry, Dist. Atty., of Waupaca, for the State.

FRITZ, Justice.

The defendant, Orville Johnson, appeals from a judgment convicting him of violating section 340.39, Stats., in that on February 23, 1935, in Waupaca county, he did assault and feloniously rob and steal from the person of John Dempsey and the cash register of Theresa Selvog lawful money, being then and there armed with a dangerous weapon, to wit, a loaded revolver, with intent, if resisted, to kill or maim the person robbed, contrary to section 340.39, Stats. That offense was charged in the first of six counts, the substance of which appears in the preceding statement. The court took a verdict in relation to only the first count.

[1][2] In appealing from that judgment, defendant contends that there is no credible evidence to support the conviction; and that it rests upon the uncorroborated testimony of Thomas Konczal and Elroy Schiekert, alleged accomplices, whose testimony is shown by the record to be wholly without evidentiary value. In passing upon that assignment of error, the following facts, established without dispute, should be noted at the outset: Between 11 and 12 o'clock p. m. on Saturday, February 23, 1935, Theresa Selvog, who operated a tavern located three miles east of Clintonville on highway 156, and John Dempsey and another patron at the tavern were held up and robbed by Thomas Konczal and Elroy Schiekert, who, after brandishing loaded revolvers and ordering Mrs. Selvog and the patrons to hold up their arms and face the wall, searched them and the premises. While Konczal and Schiekert were committing that robbery in the tavern, Johnson and Frank Nerod were in Schiekert's automobile which was parked on the private driveway in front of the tavern. Johnson, Schiekert, Konczal, and Nerod had left Milwaukee about 4 o'clock that afternoon in Schiekert's automobile and arrived at Clintonville about 9 o'clock p. m. After spending some time there, they drove east on highway 156 and Johnson directed Schiekert to Mrs. Selvog's tavern. Konczal went in alone for about ten minutes, and, upon his return to the automobile, the four men rode east and west on the highway several times before again stopping on the tavern driveway where the automobile remained while the robbery was committed. Schiekert, Konczal, and Nerod then entered the tavern, but Nerod became ill and was brought back to the car by Konczal, who immediately re-entered the tavern and joined Schiekert in the holdup. Upon commencing the holdup, the front window shades of the tavern were pulled down, and the lights inside the tavern and on the private driveway were switched off in the tavern. After the holdup, Konczal and Schiekert returned to the car with a slot machine, and the four men then drove to Clintonville and south three miles on highway 26, and east and west on several crossroads to a side road where the slot machine was broken open and the money removed. They rode back to highway 26 then and let Johnson off at another side road on which he walked about a mile west to his parents' home. His companions returned to Milwaukee that night, but he did not go back there until the next Tuesday.

In addition to the evidence which established those undisputed facts, there was sufficient credible and corroborating evidence to establish the following facts beyond any reasonable doubt, although they were disputed by Johnson, to wit: Johnson accompanied Konczal, Schiekert, and Nerod on that trip to Mrs. Selvog's tavern pursuant to prior conversations and a conspiracy between them, pursuant to which they intended that night to commit a holdup and robbery with the use of revolvers at a tavern to which Johnson was to direct them. In planning that holdup, Schiekert and Konczal, in Johnson's hearing, spoke about the two revolvers which they proposed to take along, and they also discussed and haudled those weapons during the drive to Clintonville. When the automobile was parked the last time in front of the tavern, Johnson said that he was known in that locality and would be recognized if he entered the tavern. Konczal offered a mask to him, but he stayed on guard at the automobile while Schiekert, Konczal, and Nerod, after taking the revolvers out of the car, entered the tavern to commit the holdup, and while Konczal, after first bringing Nerod back to the automobile and there taking one of the revolvers from him in Johnson's presence, re-entered the tavern with both revolvers and joined Schiekert in committing the holdup and robbery. While they were doing that, Johnson detached a wire to the distributor on Dempsey's parked automobile so as to render it unusable; and, upon the approach of another automobile on the highway, Johnson knocked at the tavern door and called to Schiekert to come out. After the four men finally drove away, Johnson was given $5 of the stolen money and he also took some of the nickels when they opened the slot machine. Although the other three men did not accompany him to his parents' farm, and were not with him when he returned alone to Milwaukee, he never told any official of the crime, until he was confronted, after his arrest, with written confessions made by Schiekert and Konczal after their arrest for another robbery committed a month later at Germantown.

Those facts, if found by the jury beyond a reasonable doubt, although they were disputed and denied by Johnson, were sufficient to establish his participation in the robbery with knowledge on his part of his associates' intentions, before leaving Milwaukee to commit the robbery at a tavern to which he was to direct them, and to use revolvers in order to accomplish that purpose. Consequently, the evidence warranted finding Johnson guilty as charged in either the first, or any of the other counts of the information. Even though there were conflicts in the testimony of Konczal and Schiekert at the preliminary examination and on the trial, and also between their testimony and that of Johnson at the trial, in respect to whether Johnson had participated in discussing revolvers and a robbery before leaving Milwaukee; whether...