Vejih v. Redford
| Decision Date | 11 December 1923 |
| Citation | 196 N.W. 228,182 Wis. 311 |
| Parties | VEJIH ET AL. v. REDFORD, SHERIFF OF WAUKESHA COUNTY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Waukesha County; C. A. Davison, Judge.
Habeas corpus by Frank Vejih and another against Alvin J. Redford, sheriff of Waukesha County. The writ was quashed, and applicants bring error. Affirmed.
The plaintiffs in error had a preliminary examination in the municipal court in the city of Oconomowoc, Waukesha county, Wis., upon a charge of burglary, and, upon the evidence there adduced, were bound over for trial. Upon application of plaintiffs in error, a writ of habeas corpus was issued by the circuit court of Waukesha county to the said municipal court, and, upon a hearing duly had, said writ was quashed and the plaintiffs in error remanded to the custody of the sheriff, and the proceedings now before this court by writ of error were brought to review the order of the circuit court.A. W. Richter, of Milwaukee, for plaintiffs in error.
H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Allen D. Young, Dist. Atty., of Waukesha, for defendant in error.
On the night of July 17, 1923, the store of one Bau, in the village of Hartland, Waukesha county, was burglarized and a large amount of personal property taken. During the nighttime of the following day the plaintiffs in error transported by automobile a part of this property to a garage belonging to one Esch, in the city of Wauwatosa, Milwaukee county, where it was found by the authorities. Part of the stolen property belonging to Bau was discovered in the home of the plaintiffs in error, in the town of Oconomowoc, upon a due search made by the authorities, pursuant to a search warrant. Upon such evidence adduced upon the preliminary examination, the judge found that a crime had been committed, and that probable cause existed to believe that plaintiffs in error were guilty, and they were accordingly bound over for trial.
Counsel for plaintiffs in error contends that the evidence in the case merely establishes the fact that his clients were found having in their possession stolen property, and that the mere possession of stolen property does not prove a prima facie case, and that the judge who heard the preliminary examination was therefore not warranted in binding over his clients.
In State v. Smith et al. (Wis.) 190 N. W. 905, it is said:
“It is well settled that possession of property alone, unsupported by other facts indicative of guilt, is not prima facie evidence that the person in possession thereof committed a larceny or burglary.”
See Stuart v. People, 42 Mich. 255, 3 N. W. 863;Ryan v. State, 83 Wis. 486, 53 N. W. 836.
[1] As an abstract proposition, this statement of the law is unquestionably correct. However, it has repeatedly been held in this state that the unexplained possession of stolen goods shortly after the commission of the larceny or burglary creates a presumption of fact against the possessor, calling upon him for explanation as to how he obtained the property, and that such presumption is not conclusive but is...
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...wrong as when he decides right.” That rule was followed in Lundstrum v. State, 140 Wis. 141, 144, 121 N. W. 883, and Vejih v. Redford, 182 Wis. 311, 314, 196 N. W. 228, and affords the test to be applied to the evidence on this appeal. [2] Section 340.26, Stats., upon which the complaint an......
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