Strait v. State

• Decision Date: 07 February 1969
• Docket Number: No. 97,97
• Citation: 164 N.W.2d 505,41 Wis.2d 552
• Parties: Myron Blaine STRAIT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 505

164 N.W.2d 505

41 Wis.2d 552

Myron Blaine STRAIT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 97.

Supreme Court of Wisconsin.

Feb. 7, 1969.

Thorpe Merriman, Fort Atkinson, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The defendant raises four issues:

(1) Did the state prove intent to steal, requisite to the crime of burglarly as charged?

(2) Was it error to admit into evidence proof of the nature of previous criminal offenses?

(3) Did the court err in admitting into evidence admissions or statements against interest made to police officers?

(4) Should plaintiff be granted a new trial in the interests of justice?

The information alleged that the defendant on the 6th day of July, 1967, did intentionally and feloniously enter a building, to-wit: the Spot Restaurant at 718 Pleasant Street, Beloit, Wisconsin, without permission of the person in lawful possession, Jo Ann Ballard, and with intent to steal therein, contrary to sec. 943.10(1), Stats.

The parties agree that to warrant a conviction upon this information the state must prove beyond reasonable doubt three essential elements: (1) intentional entry of building, (2) without consent of the person in lawful possession, and (3) with intent to steal.

The parties also agree that the first two elements have been sufficiently proven. The defendant contends the evidence is insufficient to prove intent to steal beyond a reasonable doubt and to overcome the presumption of innocence.

The building in question was in a business district in the city of Beloit and was owned by Mrs. Jo Ann Ballard. Mrs. Ballard did not live in the building but did live in Beloit. The building consisted of a first floor restaurant, known as the Spot Restaurant, a small apartment in the rear of the building, and a basement. The restaurant had not been operated or open since March, 1967. However, on the day in question, July 6, 1967, much of the restaurant equipment was still there, including cooking equipment, dishes and an empty cash register with the drawer open, a cigarette vending machine and other equipment. At the time the restaurant was at least partially lighted by a light over the back bar. Both the front and back doors of the restaurant were locked. The apartment was rented to and occupied by a young woman college student.

At about 4 a.m., the Beloit city police officers were dispatched to the Spot Restaurant after a report that someone was breaking in the building. Several officers responded to the call and one of them discovered that a basement window in the rear of the building had been broken. The rear door of the basement was forced open by the officers. The basement was dark, but with the aid of flashlights the officers found and took into custody a Mr. Burright or Bereit. After some additional searching of the basement, the police, with the exception of Officer Rule, left the premises. Officer Rule remained to watch the building and wait for the owner, Mrs. Ballard.

Mrs. Ballard arrived at about 5 a.m. She opened the front door of the restaurant and inspected it with the officer. Nothing had been taken. They then proceeded to the basement. The basement did not contain anything of any particular value but they did want to cover the broken window. The basement light was turned on and the officer saw a piece of plywood which was large enough to cover the window. When he was about to take the plywood he discovered the defendant huddled behind it. The officer handcuffed the defendant and with the assistance of another officer placed the defendant in a squad car and took him to the police station.

The officers on the way to the station advised the defendant he did not have to make a statement and anything he said could be used against him in court. The officers did not question the defendant in the car, but after being advised he could remain silent the defendant volunteered the statements that he didn't give a damn; it didn't matter anyway, he had been caught and it was one of those things when you got caught; and that he would be going to jail for quite a while.

At the trial Mrs. Ballard testified that she did not know the defendant and had not given him permission to enter the building. She also testified that nothing had been stolen.

The defendant testified in his own behalf. His testimony was that on the night of July 5th-6th he had been drinking in several taverns. He left a tavern at closing time and then rode around town with some strangers and Burright until about 3 a.m. The strangers dropped the defendant and Burright off at the State Cafe. They entered and ate a lunch. After leaving the cafe they started to walk home. While walking home on Pleasant Street, near the Spot Restaurant, a car came up slowly behind them on the street with three to five kids in it. These kids or young people started shouting filthy names at the defendant and Burright and they responded in kind. They heard what they thought was a shotgun blast,--it could have been a car backfire or a firecracker. The car went up the street a short distance and turned around. The defendant and Burright then ran into an alley and to the rear of the Spot Restaurant where the defendant kicked out the basement window and both entered to hide because they were afraid of the young men.

The police arrived shortly after the defendant and Burright had entered the premises. The defendant knew it was the police when they arrested Burright. He testified he continued to hide because 'I was inside the building, I didn't want to be charged with burglary, it looked bad enough.'

The defendant testified on both direct and cross-examination that he had been convicted on one previous occasion. The state then attempted to introduce Exhibits 1 and 2. The exhibits revealed the defendant had been convicted of three previous offenses, including burglary, indicated the sentences imposed and that probation had been revoked. An objection to the exhibits was sustained but the exhibits were redrafted leaving out the sentences and probation revocations. When the revised exhibits were re-offered, defense counsel responded, 'No objection.' The court, however, instructed the jury that prior convictions could be considered only for impeachment purposes.

At the conclusion of the state's case, and before any evidence was offered by the defendant, he moved for a dismissal upon the ground the evidence was insufficient to sustain a conviction. This motion was denied by the trial court and defendant then proceeded with his evidence (the testimony of the defendant was the only evidence offered by the defense). A motion to dismiss or for a directed verdict was not made when testimony was closed. The arguments were made, the jury instructed, and the verdict returned.

The defendant now asserts it was error to deny his motion to dismiss. This contention has been answered in State v. Wickstrom (1961), 14 Wis.2d 416, 419, 420, 111 N.W.2d 176, 177:

'Defendant argues his motion for dismissal at the close of plaintiff's case should have been granted as there was not sufficient evidence at that time to submit the case to the jury. It is true, not a strong case was put in but there was enough evidence for both issues to go to the jury. After the denial of the motion, the defendant put in his case. It has generally been held when a court has the power to direct an acquittal or dismissal of a charge against the accused and has refused to direct a verdict of acquittal at the close of the prosecution's case, the introduction of evidence by the defendant, if the entire evidence is sufficient to sustain a conviction waives the motion to direct. Wood v. Campbell, 1911, 28 S.D. 197, 132 N.W. 785; 2 Wharton, Criminal Evidence, 11th ed., p. 1521, sec. 882. See State v. Coates, 1952, 262 Wis. 469, 55 N.W.2d 353 (venue); Annotation Directing Acquittal, 17 A.L.R. 925.'

However, the question remains as to whether there is sufficient credible evidence to support the jury's verdict.

'On appeal in a criminal case the test of the sufficiency of the evidence for a conviction is whether the evidence adduced believed and rationally considered by the jury was sufficient to prove defendant's guilt beyond a reasonable doubt.' Jensen v. State (1967), 36 Wis.2d 598, 607, 153 N.W.2d 566, 570, 154 N.W.2d 769.

'Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt. " Lock v. State (1966), 31 Wis.2d 110, 115, 142 N.W.2d 183, 185.

Is the evidence sufficient to permit the jury to reasonably conclude beyond a reasonable doubt that the defendant entered the building with intent to steal?

'Intent is a state of mind existing at the time a person commits an offense. If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct, and inferences fairly deducible from all the circumstances.' 13 Am.Jur.2d, Burglary, p. 352, sec. 52.

'The type of reasonable certitude required in criminal cases is moral certainty relating to the affairs of human conduct and grows out of informed experience with the common ways (mores) of man. It is based upon the certain constancy and uniformity in the free conduct of humans under given conditions or motives. Based upon long experience with the actions and motives of human nature certain inferences of conduct may be drawn from various circumstances to a moral certainty. This is not to say exceptions and possibilities may...