State v. Spring

• Decision Date: 09 October 1970
• Docket Number: No. S,S
• Citation: State v. Spring, 179 N.W.2d 841, 48 Wis.2d 333 (Wis. 1970)
• Parties: STATE of Wisconsin, Respondent, v. Leroy SPRING, Appellant. tate 81.
• Court: Wisconsin Supreme Court

Page 841

179 N.W.2d 841

48 Wis.2d 333

STATE of Wisconsin, Respondent, v.Leroy SPRING, Appellant.

No. State 81.

Supreme Court of Wisconsin.

Oct. 9, 1970.

Leroy E. Spring was found guilty by a jury of burglarizing (sec. 943.10(1)(a), Stats.) the Alexandrian Tavern in the city of Necedah and of theft (sec. 943.20(1)(a), Stats.) of $1,225 in coin and paper money on April 8, 1966.The trial was had on June 26, 1968, and on the following day he was sentenced to the Wisconsin State Prison for an indeterminate term of not more than five years on each count, the sentences to run concurrently.A motion for a new trial was heard on December 12, 1968, and was denied.Spring appeals from the judgment of conviction and the order denying a new trial.

Myron E. La Rowe, Stevens & La Rowe, Reedsburg, for appellant.

Robert W. Warren, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

The first contention concerns the sufficiency of the evidence to convict.In the last week of March, 1966, Spring and a Mrs. Marlene Strege, who were not married, came to Necedah from Dallas, Texas.They had very little money and their car had broken down, but Mrs. Strege's father allowed Spring to use his 1955 Dodge, which had a white top and a pinkish faded old body and he permitted them to live in a house which he owned.Spring obtained employment as a welder in nearby New Lisbon, and on April 7th he received an advance on his wages in the form of a check for $25 which he cashed at the Alexandrian Tavern.He gave $20 to Mrs. strege but after an argument he left in the Dodge and was not seen again by either Mrs. Strege or her father.

During that night some of his clothing, his welding supplies, and one of Mrs. Strege's suitcases disappeared from the house and the Alexandrian Tavern was burglarized.Several days later the Dodge was found at the railway depot in Tomah.Taken from the Alexandrian Tavern were $1,170 in rolled coin including $250 in half dollars, which were exceedingly scarce at the time, and a portable metal lock box in which some of these coins were kept.An investigation outside the tavern disclosed footprints leading from the sidewalk to a broken window on the side of the building.Samples of this soil and glass were taken for analysis.

On the morning of April 8th between 6 and 7 a.m., a man purchased a one-way ticket from Tomah to New York from the ticket agent at the depot of the Milwaukee Road.The agent remembered the transaction because 58 half dollars were used in part to pay for the ticket.The purchaser asked if there was a locker in the station in which he could store a bag and upon being told there was none, the man left the depot with his suitcase and entered the pink and white Dodge.

On April10th Mrs. Strege opened a drawer in her stove and she found a metal box which she had never seen before.Sometime later at the request of the undersheriff Mrs. Strege turned the box over to him.About the same time the Necedah chief of police came to the house and asked if there was a pair of boots or shoes around.Spring had worn boots when he worked and there was a pair of engineer's boots on the porch.Upon request of the police Mrs. Strege's father said the police could take the boots.

At the trial the owner of the tavern established the metal box found by Mrs. Strege was the same tupe of box as was stolen from his tavern and his key opened the box; but the defense produced a witness in the office-supply business whose key also opened the box.Testimony by the defense disclosed that while the boots could be worn by Spring they were too small for him.The soil and glass found on the boots were compared by the state crime laboratory to the soil and glass samples gathered from the scene of the crime.This comparison revealed the sands were completely consistent in color and the particles of glass were of the same origin.The defense argued the tests used were not the most reliable.The law, however, does not require the most reliable test--the degrees of reliability go to the probative value of the test and weight the trier of the facts should give to the evidence.

We think the evidence was sufficient for conviction.The test as defined in Lock v. State(1966), 31 Wis.2d 110, 114, 115, 142 N.W.2d 183, 185, is 'whether this court can conclude the trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true.'A jury acting reasonably could be convinced of Spring's guilt beyond a reasonable doubt.

Spring argues that circumstantial evidence by its nature cannot be sufficient to prove guilt beyond a reasonable doubt, relying on Kollock v. State(1894), 88 Wis. 663, 60 N.W. 817, andColbert v. State(1905), 125 Wis. 423, 104 N.W. 61.But this court in State v. Johnson(1960), 11 Wis.2d 130, 104 N.W.2d 379, in considering the relationship between these two cases' standard of sufficiency and circumstantial evidence, ruled they did not require circumstantial evidence to exclude every hypotheses of innocence but only every reasonable hypotheses of innocence.Circumstantial evidence may meet the required standard of proof and is often as convincing as catching the little culprit with his grasping hand in the cookie jar.State v. Johnson, supra;State v. Dombrowski(1969), 44 Wis.2d 486, 171 N.W.2d 349;State v. Kitowski(1969), 44 Wis.2d 259, 170 N.W.2d 703.

Spring argues the engineer's boots which were put in evidence were obtained by an illegal search and seizure.But this is not a case where entrance to one's home voluntarily obtained was followed by a secret search in the owner's absence.SeeGouled v. United States(1921), 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647.The boots were in open view on a porch of the house and voluntarily given to the sheriff; there was no search.SeeUnited States ex rel. Stacey v. Pate(7th Cir., 1963), 324 F.2d 934, where the police went to defendant's house and were voluntarily given a bloodstained shirt by defendant's wife.

It is argued it was error to admit in evidence the cash box and boots decause they were not sufficiently connected with the scene of the crime or with Spring and therefore had no probative value.This real evidence was admissible; the box and boots were identified as the articlesthey purported to be and each was shown by valid inference to be connected with the crime or with the accused.The box was of the same type and the tavernkeeper's key opened it.The engineer's boots were of the type worn by Spring and found on the porch of his home and were identified by glass and soil tests as those present at the scene of the crime.There was a reasonably probable identification of evidence having probative value.The identification is not required to be positive, absolute, certain, or wholly unqualified.22A. C.J.S.Criminal Law§ 709, p. 949.SeeUnited States v. Panczko(7th Cir., 1965), 353 F.2d 676, 679(keys in evidence were similar to those given the officer);andPeople v. Smith(1965), 63 Ill.App.2d 369, 211 N.E.2d 456, 459(money found in defendant's home 4 days after crime lacked characteristics sufficient to distinguish it from any other money).

During the closing...