State v. Lombardi

• Decision Date: 01 December 1959
• Citation: 99 N.W.2d 829,8 Wis.2d 421
• Parties: STATE of Wisconsin, Respondent, v. Michael LOMBARDI, Appellant.
• Court: Wisconsin Supreme Court

Page 829

99 N.W.2d 829

8 Wis.2d 421

STATE of Wisconsin, Respondent, v. Michael LOMBARDI, Appellant.

Supreme Court of Wisconsin.

Dec. 1, 1959.

Rehearing Denied Feb. 2, 1960.

N. Paley Phillips, Milwaukee, Kenneth J. Phillips, Milwaukee, of counsel, for appellant.

John W. Reynolds, Atty. Gen., Herbert L. Mount, Special Prosecutor, Milwaukee, for respondent.

BROWN, Justice.

Appellant submits that the Informations do not charge him with any crime or misdemeanor, nor do the verdicts find him guilty of any because they do not charge or find that he acted from corrupt motives and therefore are defective.

Corruption, that is, action or nonaction motivated by personal gain or advantage to the sheriff, is not an essential element of the misdemeanors with which the sheriff is charged. His wilful refusal or nonperformance of duties imposed on him by law by virtue of his office constitute the offenses of which the sheriff is accused regardless of the presence or absence of the corrupt motive.

We consider that in form the Informations and verdicts contain no reversible error. Their language is that of the statute itself, and the statute is identified by its appropriate number. In content each Information recites the action or failure to act whereby the sheriff violated the statute. The time, place, persons involved, the event and circumstances of the alleged offense requiring the sheriff's performance or nonperformance of some act are described with certainty. The defendant seems to have had no difficulty in identifying the occurrences and events about which the state complains or in presenting his defense by uncertainty in the state's Informations; nor do we think them at all vague or calculated to confuse or mislead the appellant. We find the Informations and the verdicts comply with good practice and with due process of law.

Therefore we get to the merits of the case.

If there is any credible evidence which in any reasonable view supports a verdict in a criminal case it cannot be disturbed on appeal. Imperio v. State, 1913, 153 Wis. 455, 141 N.W. 241; State v. Hintz, 1930, 200 Wis. 636, 229 N.W. 54; Parke v. State, 1931, 204 Wis. 443, 235 N.W. 775; State v. Fricke, 1934, 215 Wis. 661, 255 N.W. 724.

On the drunken driving arrests of Seaman, Doherty and Koshak, the record shows that each of them had an accident while driving his automobile, that a deputy sheriff reached the scene of the accident and from the driver's appearance and behavior the deputy concluded that he was under the influence of intoxicating liquor, arrested him and took him to the sheriff's office (generally referred to as 'the station') and there made out a report stating that the person was arrested for drunken driving. He was booked as such on the station register. Thereafter the sheriff, disregarding the report of his deputy, excused, dismissed or quashed any further proceedings against each driver so arrested and charged. Such dispositions of such cases were wilful, that is, intentional. The duty of the sheriff under the circumstances was for him to refer the arrest with a full and complete report to the prosecuting officer of the county, the district attorney, for further disposition. The sheriff's neglect to do so was a violation of his duty contrary to the provisions of sec. 348.29, Stats. (1953). The verdicts in the Seaman, Doherty and Koshak matters are supported by the evidence and the judgments in those respects are affirmed.

The drunken driving arrests of Winzenreid and Anoszko do not differ materially from the three traffic arrests just discussed, up to the point where the deputies' reports came into the sheriff's hands. In the Anoszko matter, on the day following the arrest the sheriff asked the arresting officer to change his report to show that Anoszko was arrested for reckless driving, instead of drunken driving. The deputy complied with the request of his superior officer, but at the trial he testified that he had no doubt but that Anoszko was under the influence of intoxicating liquor at the time when he was operating his automobile. A specimen of urine was taken from Anoszko and given to the Waukesha Hospital for analysis and the sheriff was so informed. What happened to the test is not disclosed. The district attorney came upon the scene shortly after the accident and at the trial testified that it was he who made the charge, reckless driving, against Anoszko from his own observation and on his own responsibility. Under such circumstances the evidence does not support the verdict, court 2, Information 'B', that the sheriff 'specifically ordered such charge [drunken driving] reduced to reckless driving.' It may well be asserted that the 'request' amounting to a command, under the circumstances, that the arresting deputy change his report and alter the arrest to one for reckless driving and the omission of reporting to the district attorney the circumstances of the arrest and the pending urine test, constitute breaches of duty by the sheriff. But the evidence is conclusive that the reduction of the charge was not by the sheriff and therefore contrary to the verdicts on counts 2 and 3 of Information 'B.' Those verdicts, the judgments and the attendant sentences must be reversed and set aside.

The material facts in the arrest and booking of Winzenreid for drunken driving are similar to those in the Seaman, Doherty, Koshak and Anoszko episodes. The day after the arrest the sheriff asked the deputy who made the arrest, Janssen, to reduce the charge to reckless driving. Janssen said he would not. Thereafter the charge was so reduced and the Information accuses the sheriff of making the reduction and the verdict found he did so. However, both Janssen and the district attorney testified that the district attorney questioned Janssen about the circumstances of the arrest and complaint after which the district attorney, himself, filed the reckless driving charge. In our view the evidence does not sustain the verdict finding the defendant guilty of ordering the reduction of the charge against Winzenreid. That verdict, and the resulting judgment and sentence must be set aside.

The verdict upon count 4 of Information 'A' is sustained by the evidence and the matters recited therein are violations of sec. 348.29 (1953) Stats. The judgment and sentence upon that count are affirmed.

Count 3, Information 'B' pertains to an assault by Dominic Picciurro against Peter Picciurro.

The alleged assault took place at Dominic's tavern, Club 166. Eye-witnesses were at all times available for a prompt and thorough investigation. They testified at the trial that Dominic severely and brutally beat his son Peter about the head and face while Peter made no resistance. While this was going on the sheriff's office was notified by phone and deputies were sent to the scene. When they arrived the assault had ended. Peter's jaw was broken on both sides of his face. Sheriff's deputies took Peter to the hospital where he was hospitalized for several days. On the trip there Peter told the deputies that he was injured by falling down the tavern steps. He also told them that his father must have hit him 40 times. One of the deputies, Nordseth, who came to the scene, made a report with a complaint of assault attached to it. At the trial Nordseth testified that in his report to the sheriff he listed the names of the witnesses. The report cannot now be found.

When the sheriff received the report on the following day he said he would take care of it personally. Lombardi then interviewed Peter Picciurro at the hospital. Peter said he would not file a complaint against his father; that Dominic had not injured him but Peter had hurt himself. Lombardi made no further investigation or at least he testified to none. He made no report to the district attorney of his own volition, but the next day the district attorney heard rumors about the trouble at the tavern and inquired about it from the sheriff. Lombardi told him that he had investigated the matter and it turned out to be merely family trouble, the son did not want to sign a complaint against his father and the matter required no further attention. No further attention was given it either by the sheriff or the district attorney. But the sheriff did not tell the district attorney that the deputy sheriff had attached an assault complaint to his report, with names of witnesses, the sheriff did not interview the witnesses, nor did the sheriff inform the district attorney of the serious injuries which Peter had received. The record fully substantiates the conclusion that the sheriff found no facts to incriminate Dominic Picciurro because he preferred not to find them and he withheld from the district attorney the few important facts which the sheriff did know. The record sustains the verdict in count 3, Information 'B' finding Michael Lombardi guilty of failing to arrest Dominic Picciurro and of withholding material facts from the district attorney. The judgment and sentence on this count must be affirmed.

The remaining Information and verdict is that of count 5, Information 'A.' In brief the state accuses and convicts the defendant of wilful reglect of his duty in the period between January 1, 1955 and June 30, 1956, in that he, the sheriff knowingly permitted a tavern and night club known as Club 166 to operate in violation of the laws regarding prostitution, gambling and sale of liquor; and the sheriff not only did not, himself, enforce the laws in those respects but prevented his deputies from interfering with the illegal operations of the Club.

The Club was operated by Mr. and Mrs. Dominic Picciurro. The record shows that the sheriff was a frequenter of the Club and was a long time, close friend to Dominic. An employee at the Club testified that between January 1, 1955 and June 30, 1956, liquor was served there later than at legal hours and gambling was conducted there. During that time detectives from ...