State v. Smith
| Citation | 190 N.W. 905,179 Wis. 170 |
| Parties | STATE v. SMITH ET AL. |
| Decision Date | 05 December 1922 |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Municipal Court of Milwaukee County; A. C. Backus, Judge.
Peter K. Smith and Jimmie Montello were convicted of larceny, and the latter brings error. Reversed and remanded.
The plaintiff in error, hereinafter called the defendant, together with one Smith, was found guilty of the larceny of an automobile. Smith pleaded guilty to the charge, and the defendant waived a jury, and was found guilty by the court and sentenced to three years in the House of Correction of Milwaukee County. To test the validity of the sentence he sued out a writ of error.Richter & Nebel, of Milwaukee, for plaintiff in error.
William J. Morgan, Atty. Gen., Winfred C. Zabel, Dist. Atty., and Eugene Wengert, Asst. Dist. Atty., both of Milwaukee, for the State.
The automobile was stolen in Milwaukee, and later on the same day Smith and the defendant were arrested in Racine. Smith was driving the automobile, and the defendant was with him in the driver's seat. Upon being arrested the defendant refused to answer questions put to him by the officer, except that he stated, as testified to by the officer upon the trial, that he first met Smith in a pool hall in Milwaukee, and upon Smith's invitation rode with him to Chicago, where they were going when arrested. He also told the officer that he came to Milwaukee the same day with another man, who came to see his parents. Smith, who pleaded guilty, testified that he alone stole the automobile, that he stopped at a pool hall to buy some cigarettes, and there he first met the defendant and invited him to ride to Chicago, and that he did not tell him that he had stolen the automobile. It also appears from the evidence that Smith alone drove the car; that he bought and paid for the gasoline and oil before they were arrested. It further appears that Smith claimed the motor was running at the time he stole the car, and he disclaimed any knowledge of the Illinois license plates that were found in the car. The evidence further showed that the engine apparently was started by means of a short-circuit wire used for that purpose, and that the motor was not running when the owner left it. The evidence also established that the license plates in the car came from Joliet, Ill., the home of the defendant Smith. The defendant did not testify. Upon this evidence the court found the defendant guilty, presumably upon the theory that, since Smith testified falsely as to how the motor started, and as to his possession of the Illinois license plates, he was not to be believed when he testified that he alone stole the car, and that since both were found in the car, although Smith was driving it, the defendant was found in the possession of stolen property, and failed to give a satisfactory explanation of how he came to be in possession of the same.
[1][2][3] We think the trial court erred in reaching the conclusion from this testimony that the defendant was proven guilty beyond a reasonable doubt. The statute (section 4071) provides that his omission to testify shall create no presumption against him, and he had a right to rely for his protection upon the explanation of Smith as to who stole the car, and as to who was in possession thereof. We think the fact that Smith's failure to tell the truth, if he did, so far as to how the motor was started and as to the possession of the Illinois license plates, did not justify the trial court in reaching the...
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