State v. Phillips
| Decision Date | 05 November 1952 |
| Citation | 262 Wis. 303,55 N.W.2d 384 |
| Parties | STATE, v. PHILLIPS. |
| Court | Wisconsin Supreme Court |
John Franklin Phillips was convicted April 16, 1951 of a violation on July 24, 1949 of sec. 343.12, Stats. (breaking and entering in the daytime) and of being a second offender, sec. 359.13, Stats. (1947). Trial was to the court. Jerome and Samuel DiMaggio, alleged to be his associates in the crime, were tried with him and Sam was convicted. Only Phillips has appealed. He contends that it was reversible error to admit certain evidence because illegally obtained and, whether or not its admission was error, the evidence in the case does not prove guilt beyond a reasonable doubt. Essential facts will be given in the opinion.
N. Paley Phillips, Irving D. Gaines, Milwaukee, for appellant.
Vernon W. Thomson, Atty. Gen., William J. McCauley, Dist. Atty., Joseph E. Tierney, Asst. Dist. Atty., Milwaukee, for respondent.
For reasons not disclosed, on the evening of July 23, 1949, detectives Bogart and Reitz, of the Milwaukee police force, were detailed to watch a certain automobile parked near Phillips' residence. At 10:40 P.M. appellant came out of his third floor apartment and drove away in the automobile, followed by the two detectives in their car. After some cruising around he was joined by Jerome and Samuel DiMaggio whom the detectives recognized from pictures of the two men in their possession. It was then about midnight. The three spent the next three hours cruising in the neighborhood of the International Harvester Company's plant, making four circuits of the plant at slow speed, with occasional stops at filling stations and taverns. At 3:00 A.M. July 24th, Jerome DiMaggio drove the automobile away from such a filling station, followed by the detectives who were not able to see whether Phillips was then in the automobile. The detectives lost sight of the automobile at about 3:15 A.M. and were unable to find it again. At 6:00 A.M., while they were searching for the car, they heard on their radio that there had been a burglary at the Harvester plant. They went there and found other police were in charge, and they observed the Harvester Company vault with a section of its steel door burned out by an acetylene torch which lay on the floor. Near the vault there were scattered fragments of fused steel and a white, powdery insulating material, and the floor showed tracks of shoes whose rubber soles made a distinctive, peculiar pattern. After leaving the plant, and at about 6:20 A.M., they heard a radio request to help detective Cherney at a certain location. Cherney had previously been at the Harvester plant where he, too, had observed the evidence of burglary. Bogart and Reitz responded to the call and found Cherney had Sam and Jerome DiMaggio in custody and had taken from Sam a paper parcel from which a pair of tennis shoes protruded. Sam said they were his. Detectives Cherney, Bogart and Reitz recognized the pattern of the soles was the same as the shoe prints on the floor near the Harvester Company's vault.
Bogart and Reitz then went to Phillips' home which they reached about 7:15 A.M. They knocked at the door and said they were police officers. Phillips' wife opened the door. The appellant stood behind her. Mr. Bogart at once informed John Phillips that he was under arrest for suspicion of burglary. Phillips, who was in his underwear, said he must put on more clothes. Followed by Reitz he went to a closet where to took some clothing and dropped it on the floor. Being suspicious, Reitz asked him what he was covering up. Phillips said the garment just fell. Reitz picked up the fallen garment and found it concealed the hat and shirt which he had seen Phillips wearing when they were following him. Reitz took possession of the hat, shirt and a pair of shoes and socks and trousers, all of which were damp and sweaty. Material adhering to these garments was analyzed by the state crime laboratory and proved to be globules of fused steel, and fragments of paint, and insulating material, identical in composition and color to the materials of which the Harvester vault was constructed and to the debris lying around the burned safe. Many of the specimens taken from the clothing showed that they had been subjected to extreme heat. Phillips' shoes also contained bits of cinders like those under the Harvester window.
The shoes taken from Sam DiMaggio were demonstrated by the state crime laboratory to be those which had made the prints on the floor near the safe and Sam DiMaggio's clothing yielded specimens like those found in Phillips' garments.
The trial court's memorandum states:
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'Although the evidence connecting the defendants Samuel Salvatore DiMaggio and John Franklin Phillips with the offense charged is circumstantial, actually it connects them with the perpetration of the crime as positively, if not more so, than if actual eyewitnesses had been produced who had seen them actually assisting in cutting open the vault door when the offense was committed. * * *
* * *
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'The fragments found in the cuffs of John Phillips' trousers taken from him at the time of his arrest positively came from his participation in the burglary. The proof is inescapable that he wore said trousers at the time of the burglary. The same situation is true with respect to the shoes and shirt taken from him at the time of his arrest.
'The cinders came from under the open window in the rear of the burglarized plant, and not from any other source.'
Appellant concedes that a valid arrest may be made without a warrant when the arresting officer has reasonable, probable, cause to believe the person arrested has committed a crime, but he denies that the detectives had such cause under the circumstances of this case.
Bogart and Reitz knew, personally, that a felonious attempt had been made prior to 6:00 A.M. to open the Harvester safe; they knew, personally, that shoes carried by Sam DiMaggio at about 6:30 A.M. were worn by some person concerned in the attempt; they knew, personally, that at least until 3:00 A.M. Sam DiMaggio, Jerome DiMaggio and Phillips had spent the night in company, driving around the scene of the burglary in Phillips' automobile in an unusual and suspicious manner and that at 3:15 A.M. Jerome was driving the car and eluded the detectives. In our view any reasonably intelligent, cautious man would conclude that the three were engaged in some common enterprise and when, by the capture of the rubber soled shoes, it appeared that one of them had participated in a burglary, reasonable men would conclude that in all probability the burglary was the enterprise and that they all participated in it in one way or another.
* * *' 4 Am.Jur., p. 18, sec. 25.
We conclude that the...
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