State v. Kluck

• Decision Date: 10 November 1936
• Citation: 223 Wis. 381,269 N.W. 683
• Parties: STATE v. KLUCK.
• Court: Wisconsin Supreme Court

223 Wis. 381

269 N.W. 683

STATE

v.KLUCK.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Error to review a judgment of the Circuit Court for Portage County; Byron B. Park, Judge.

Affirmed.

Dan Kluck and several others were prosecuted, convicted, and sentenced, after a trial by jury, for manufacturing, selling, and aiding and abetting in the manufacture and sale of illicit intoxicating liquor contrary to the provisions of section 176.051, Stats. Dan Kluck applied for a writ of error to review the judgment.Martens & Meleski, of Stevens Point, and Bird, Smith, Okoneski & Puchner, of Wausau (Charles F. Smith, of Wausau, of counsel), for plaintiff in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and R. B. Graves, Special Prosecutor, of Wisconsin Rapids, for the State.

FRITZ, Justice.

[1][2] The first assignment of error is that the trial court erred in denying defendant's plea in abatement, on the ground that he had been bound over to the circuit court without sufficient evidence. It is well established that in passing upon such a plea, the reviewing court is required to “Examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. It cannot go beyond that and weigh the evidence. It can say whether the complaint will admit of a construction charging a criminal offense, or whether the evidence rendered the charge against the prisoner within reasonable probabilities. That is all. When it has discovered that there was competent evidence for the judicial mind of the examining magistrate to act upon in determining the existence of the essential facts, it has reached the limit of its jurisdiction on that point. If the examining magistrate acts without evidence, he exceeds his jurisdiction; but any act, upon evidence worthy of consideration in any aspect, is as well within his jurisdiction when he decides wrong as when he decides right.” State ex rel. Durner v. Huegin, 110 Wis. 189, 237, 85 N.W. 1046, 1057, 62 L.R.A. 700;State v. Whatley, 210 Wis. 157, 159, 245 N.W. 93, 99 A.L.R. 749. The record in this action discloses that the evidence warranted the examining magistrate in concluding that the charge made against Dan Kluck was within reasonable probabilities because there was credible evidence which established or fairly admitted of inferences to the following effect.

On, and for several years prior to, September 6, 1935, Dan Kluck was the proprietor of the Empire Tavern in Stevens Point. On the night of that day a still, then in use for the manufacture of illicit alcohol on a farm near Stevens Point, was raided and seized by John W. Roach, chief inspector for the State Treasury Beverage Tax Division Department, with the aid of twelve deputies. They proceeded by a private and the public roads to John Krupka's farm, and en route arrested several other men and confiscated cars engaged in transporting that alcohol. In a garage at the Krupka farm the officials found and seized 100 sacks of sugar, large quantities of bottles, made in imitation of those used in lawfully selling “Seagram Seven Crown” liquor, and also 1,000 fibre–board cartons with partitions to accommodate the counterfeit bottles. While those seizures were being made, John Bannach, who was subsequently arrested as a codefendant herein, and who was largely in charge of the manufacture and sale of the illicit liquor in question, requested, at Stevens Point, Glenn Scheider, who had been hired by Bannach to aid in handling the illicit alcohol and was also arrested subsequently, to accompany him in an automobile, in which they, accompanied by Phil Kluck, a brother of Dan Kluck, drove past the Krupka farm, where they saw the lights of two or three automobiles, and then turned around and, after again passing that farm without stopping, returned to Stevens Point. There, at about midnight, Bannach and Phil Kluck, after leaving Scheider at a hotel, went to Dan Kluck's Empire Tavern and Bannach reported to Dan Kluck his suspicion that the Krupka storage place was being hi–jacked again. However, even before Bannach made that report, Dan Kluck had received a report to the same effect by telephone at his tavern, while Ed Zinda and Leo Frymark, the chief of police of Stevens Point, were there with him. After making his report, Bannach picked up Scheider and also the sheriff to go with them to the Krupka farm on the theory that there was another hi–jacking there. Bannach had a sawed–off shotgun, and the sheriff took a high–powered machine gun along. Dan Kluck drove in his automobile, accompanied by Frymark and Zinda, to the Krupka farm, and upon arriving there they were promptly arrested. When Bannach arrived at the farm and saw a crowd and what was going on there, he did not stop excepting to let off the sheriff, whom he told that if there were state officers, it was all right, but if there were hi–jackers to light into them, or words to that effect. When the sheriff approached the garage he was also arrested.

While Roach was taking Dan Kluck back to Stevens Point in a car, Roach asked him how he happened to get out there and to that particular farm. He replied he heard there was a stick–up and went out to see what was going on. He did not know how he happened to go to that farm, but he drove without stopping at any other place on the way out, and as he saw the cars in the yard they drove in. Upon Roach's trying to get the reason for Dan Kluck's driving directly to that farm without stopping at any other places, he told him that they had gotten a telephone call at his tavern about a stick–up, and when he was then asked how telephone calls in relation to stick–ups happened, at that hour of the morning, to go to the Empire Tavern, he replied that he did not know–somebody just called. When Roach asked, “How long has this still been going, Dan,” he said he did not know anything about it, but added, “No man in Stevens Point is rich enough to own that still.”

Furthermore, there was proof that Bannach's headquarters were in the Empire Tavern; and that in a private room there he give directions to Glenn Scheider. After the latter's arrest, his father, Rudolph Scheider, while walking to the Empire Tavern with Dan Kluck, told the latter that it was a nice thing for Glenn to “get roped into it,” and not get any help; that Glenn was out of work and out of money and his car bill was to be paid. Dan Kluck replied “We'll see that he eats”; and (in respect to the car bill) “I will see that it gets paid.” After that Rudolph Scheider was given $50 in cash in the Empire Tavern by Dan Kluck's bartender.

Those facts and circumstances warranted the belief that the peculiar and extraordinary interest on the part of Dan Kluck, in respect to the suspected hi–jacking on that night, was because he was financially interested and participated in conducting that illicit liquor business. That was convincingly indicated by such circumstances as that Bannach, who was directly in charge of that business used Dan Kluck's tavern as his headquarters, and there gave directions to employees; that, although it was then midnight, Bannach, upon discovering the assumed hi–jacking, promptly reported to Dan Kluck at his tavern, and that he had already received a similar report, and then drove directly to the Krupka farm accompanied by Zinda and the chief of police; that Dan Kluck apparently knew of the magnitude of the still, etc., when he told Roach that no man in Stevens Point was rich enough to own it; and Dan Kluck's promise to Rudolph Scheider to aid his son financially, and the payment of $50 to him by Dan Kluck's bartender without any other explanation for that payment, were made because Dan Kluck considered himself under some obligation to Glenn Scheider, which could be accounted for only upon the theory that he was implicated in the crime for which Scheider and the others had been arrested. As those matters collectively justified the magistrate in binding Dan Kluck over to the circuit court for trial, that court rightly overruled the plea in abatement.

[3][4] The second assignment of error is that the court erred in denying Dan Kluck's timely motion for a separate trial. He claims that by trying him jointly with twelve defendants he was wrongly prejudiced by the receipt in evidence of confessions made by some of them; by the conclusive proof of the participation of some of them in operating the still and transporting alcohol and sugar to and from the still; by evidence of some of them as to meeting Bannach in Dan Kluck's tavern; by his being obliged to sit during the trial with the other defendants and stand up at times for identification; and by the confused mass of testimony...