State v. Zuehlke

• Decision Date: 04 November 1941
• Citation: 239 Wis. 111,300 N.W. 746
• Parties: STATE v. ZUEHLKE.
• Court: Wisconsin Supreme Court

239 Wis. 111

300 N.W. 746

STATE

v.ZUEHLKE.

Supreme Court of Wisconsin.

Nov. 4, 1941.

Appeal from a judgment of the Circuit Court for Waupaca County; Herman J. Severson, Judge.

Affirmed.

Raymond Zuehlke was convicted of the crime of arson. The information contained four counts; the first was for the burning of a dwelling house, and the second, third and fourth were for burning personal property. The conviction was on the first county only. Defendant's motions after the verdict were overruled and the defendant was adjudged guilty of arson in violation of sec. 343.01, Stats., and sentenced to a term of imprisonment of from two to five years in the state's prison at Waupun.

On November 24, 1940, at 11 p. m. a fire occurred in a one–story house in Fremont, Wisconsin, owned by defendant's brother. The fire started from an explosion. Six empty gasoline cans, five full ones, and one party filled were found in the house. The house was insured and there was insurance covering household furniture, books and other items of personal property. Defendant owned the books. The defendant was employed in the division of information of Surplus Marketing in the United States Department of Agriculture in Washington, D. C. On November 24 an airplane passenger, registered as R. C. Jones and weighing 160 pounds, left Washington for Chicago. The flight arrived at Chicago at 1:47 p. m. A train on the Northwestern railroad left Chicago at 3:30 p. m. and arrived at Neenah, Wisconsin, at 7:45 p. m. Between 8:30 and 8:45 p. m. a man identified as the defendant bought six one–gallon cans of gasoline at one station and a little later a man so identified bought six more one–gallon cans at another station. The police chief of Neenah identified the defendants as seen carrying a number of bright red gasoline cans. Shortly before 9 that evening a cab driver at Neenah agreed with a man giving his name as Jones to drive him to Fremont and from there to Cicero, Illinois. He drove the man to the vicinity of the house that was partly burned and waited there, but the passenger never returned. About 11 o'clock the driver heard an explosion and saw the fire. At about 4:20 a. m. a Greyhound bus was about to leave Fremont for Chicago. While the bus driver was taking the ticket of a passenger another man without a ticket entered the bus. This man later gave the conductor a five–dollar bill saying he wanted to go to Chicago. The bus driver identified the man as the defendant and a fellow passenger who observed him considerably on the trip also identified him. A witness who had known the defendant testified that the man who entered the bus resembled the defendant. Defendant had an injury to his face and powdery or singed hair. He was noticed to take a mirror from his bag and apply oil to his face and eyebrows. It was noticed that he attempted to throw a bunch of skeleton keys out of the bus window. Early in the trip the man wore a moustache. Later the moustache disappeared. This man left the bus at the intersection of Madison and Michigan Avenues at Chicago. Defendant was not seen at his office in Washington before 5:30 p. m. November 25. Both at that time and later when defendant was arrested the injury to his face was apparent. After the defendant's arrest the officers found at his desk in Washington a calendar pad, a number of index cards and a cardboard calendar, all containing notations in defendant's handwriting, showing defendanthad planned to set fire to this house evidently for the purpose of collecting insurance on his books and other property belonging to him. A few days later a short distance from the house where the explosion and fire occurred a pair of glasses was found in its case along with a cloth cleaner on which was printed the name and address of a Washington, D. C. optometrist. There was evidence that the glasses belonged to the defendant. It appears that at the time of the extradition hearing in Washington defendant asked the then district attorney of Waupaca county whether he would recommend probation if defendant would plead guilty. At a later date, in a hotel in Appleton, during a conversation with a deputy fire marshal, defendant is reported to have said that he would plead guilty if it weren't for the fact that it would drive his mother crazy. There are other incriminating circumstances unnecessary to mention. Further facts of consequence in this decision will be referred to in the opinion.

Defendant complains that he was prejudiced by the refusal of the trial court to grant a change of venue from Waupaca county, by the refusal to suppress evidence, by the erroneous admission in evidence of statements claimed to have been made by him to various people, by erroneous instructions to the jury and by the selection of a jury from an incomplete panel.

Wendell McHenry, of Waupaca, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and J. Kyle Anderson, Dist. Atty., of Waupaca, for respondent.

FAIRCHILD, Justice.

[1][2] The evidence sustains the conviction. The ruling upon the motion for a change of venue must be sustained. There was a strong showing no the part of the state that public sentiment in the county was such that a fair trial of the defendant could be had. No sufficient showing of excitement or prejudice that would interfere with defendant's rights was made. The affidavits in opposition to the motion which were filed by the state answered the objections raised by the defendant. The correctness of the conclusion of the trial judge in that respect was demonstrated by the fact that no difficulty was encountered in securing a fair and unbiased jury. Krueger v. State, 171 Wis. 566, 576, 177 N.W. 917;State v. Smith, 201 Wis. 8, 10, 229 N.W. 51;Schroeder v. State, 222 Wis. 251, 254, 267 N.W. 899.

[3] Testimony of witnesses who identified appellant and the circumstantial evidence presented at the trial shows a carefully arranged plan on his part to do the very thing he has been convicted of doing. While appellant pleaded not guilty, no evidence was offered on his behalf which would in any way explain his conduct or modify the effect of his presence at the scene of the crime, his purchasing of material calculated to cause the conflagration, and his carrying it into the house which he proposed to burn. His mismanagement of the material to be used in setting fire to the house resulted in an explosion and an alarm ahead of the time he had planned to have the fire occur. He sustained injuries as the result of the explosion. His face was burned and his hair was singed. The excitement resulting from this unexpected disturbance of his plans caused him to leave his glasses and glasses case behind. The latter contained an address which at once directed suspicion toward the appellant. His arrest at Washington, D. C., followed in a few days and the particles of evidence discovered by the fire marshal and police began to fit themselves together so perfectly that no reasonable doubt as to appellant's guilt can exist after a review of the evidence. For some time before the attempt he had been planning the burning of the house and the destruction of his personal property which was in it. Some of the evidence to the admission of which appellant objected consisted of memoranda made by him of experiments as to the length of time a candle would burn and of details of the plan which he had in mind. Alleged errors claimed to have been committed in securing his conviction are chiefly based on the general proposition that the trial court erred in admitting in evidence papers, documents, articles of clothing and other personal property because obtained by an unlawful search and seizure, and contrary to appellant's constitutional rights under the fourth8 and fifth amendments to the U. S....