State v. Rodell
| Decision Date | 02 October 1962 |
| Citation | 117 N.W.2d 278,17 Wis.2d 451 |
| Parties | STATE of Wisconsin, Respondent, v. Albin C. RODELL, Appellant. |
| Court | Wisconsin Supreme Court |
Hill, Miller & Quale, Baraboo, for appellant.
John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, for respondent.
The record discloses that the following stipulation was entered into by and between the district attorney of Sauk county and the attorney for the defendant:
'* * * the court may enter an order staying the execution of the judgment made herein for the reason that the appeal is based on a question of law rather than on one of the sufficiency of evidence as presented by the record.'
The appeal is based upon an erroneous instruction given by the trial court to the jury. At the trial Officer Foley testified: 'the blood alcohol reading was seventeen hundredths per cent.' The court in its instruction read sec. 325.235, Stats., 1 to the jury, and then continued its instruction on the statute, to wit:
'The court: (continuing the charge) then you may, on these grounds alone, find that he was under the influence of an intoxicant, and that while in such condition he operated a motor vehicle.'
It is evident that error was committed in instructing the jury relative to the results of the breath test. The trial court stated: 'The testimony was there was a seventeen hundredths of one per cent of alcohol in the blood by volume.' The statute is based on a per cent by weight. The witness did not testify to a per cent by weight or volume, nor was a foundation laid which would allow a reasonable inference to be made as to whether the percentage was based on weight or volume.
The record is barren of any motions having been made on behalf of the defendant at the close of the testimony or after the trial.
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State v. Lockamy
...evidence. See State v. Carwile, 441 S.W.2d 763 (Mo.Ct.App.1969); State v. Corsiglia, 435 S.W.2d 430 (Mo.Ct.App.1968); State v. Rodell, 17 Wis.2d 451, 117 N.W.2d 278 (1962). The holdings in the Corsiglia and Carwile cases, which defendant relies on, were based on a Missouri statute, since am......
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Bethards v. State
...168 N.W.2d at page 580.16 (1966), 32 Wis.2d 503, 145 N.W.2d 739.17 Id. at page 511, 145 N.W.2d at page 743.18 See State v. Rodell (1962), 17 Wis.2d 451, 117 N.W.2d 278.19 '939.05 Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with a......
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Com. v. Brooks
...See, e.g., State v. Corsiglia, 435 S.W.2d 430 (Ct.App.Mo.1968); State v. Carwile, 441 S.W.2d 763 (Ct.App.Mo.1969); State v. Rodell, 17 Wis.2d 451, 117 N.W.2d 278 (1962). See also Kettering v. Baker, 34 Ohio Misc. 7, 295 N.E.2d 440 (1973). The Corsiglia and Carwile cases, however, are easily......