Opinion
February 2, 1967. —
February 28, 1967.
ERROR to review a judgment of the county court of Marathon county: RONALD D. KEBERLE, Judge, and an order of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the plaintiff in error there were briefs and oral argument by Robert H. Friebert, public defender.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, and Daniel L. LaRocque, district attorney of Marathon county, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Platz, assistant attorney general.
On November 1, 1965, the defendant Frank Belohlavek was charged with theft of a purse belonging to Mrs. John Mayer, theft of $140, and drunkenness. The drunkenness charge subsequently was dropped, and the defendant pleaded not guilty to the theft charges. A trial to a jury commenced on January 3, 1966, in the county court of Marathon county. The defendant was found not guilty of the theft of the purse but guilty of the theft of $140 in cash.
He was sentenced on January 4, 1966, to an indeterminate term of not more than two years in the Wisconsin state prison. The county court denied a motion for new trial; the denial was affirmed by the circuit court for Marathon county. Writs of error were issued to review the judgment of conviction and sentence and also to review the circuit court's order which affirmed the county court's denial of a motion for new trial.
The purse and money in question were left inadvertently by Mrs. Mayer on the fender of her car, and she drove away. Two employees of the Marathon county highway department, Mr. McHugh and Mr. Miller, later sighted the purse along the roadway, stopped, picked up the purse, and examined its contents. Mr. McHugh had counted $140 in cash when the defendant and a Mr. Fred Steffen pulled up. The defendant, known by both employees, approached the truck, and from this point the testimony as to what occurred is conflicting.
Mr. McHugh testified that he asked the defendant whether the purse was his, and the defendant replied, "Yup, thank you." Mr. Miller also testified that the defendant said the purse was his. Mr. McHugh and Mr. Miller testified that they then gave the defendant the purse in one hand and cash in the other. Afterwards, Mr. Miller stepped out to see if there was a woman in the defendant's truck, and when he saw that there was not he reported the incident to the chief of the Mosinee police.
Mr. Steffen, the driver of the truck in which the defendant was riding, testified that he met the defendant outside Kyho's tavern on the afternoon of October 14, 1965, at which time the defendant jumped into the truck and said, "You old-son-of-a-gun, I haven't seen you for a long time, let's go have a drink." The two men then proceeded toward Mosinee and saw a purse lying in the road. The defendant urged Mr. Steffen to stop, but they were unable to do so at the moment and turned around in a Mosinee service station. When they reached the spot where the purse had been sighted, the defendant got out and talked to the men in the county highway truck. According to Mr. Steffen, when the defendant returned and was asked to explain how he got the purse, the defendant answered, "I told them that was mine."
The defendant denied that he told Mr. Miller, Mr. McHugh or Mr. Steffen that the purse was his, and he also denied taking any of the money that had been in the purse. He stated that he wanted to be sure that the purse was returned to the owner because he, himself, had lost his billfold a few weeks earlier and had experienced difficulty due to the loss of valuable papers. When the defendant and Mr. Steffen returned to Kyho's tavern, the defendant gave the purse to the proprietor and asked her to call the owner. There was testimony that the $140 was not in the purse at that time.
There was also certain testimony relating to drinking on the part of the defendant. At the close of the testimony, the defendant's attorney, in the absence of the jury, requested an instruction on intoxication, which request was denied. Further facts regarding intoxication are recited in the opinion.
The defendant urges that the trial court erred in refusing to give an instruction with respect to intoxication. The instruction sought would have informed the jury that intoxication is a defense to a crime in which intent is an essential element.
See Wis J I — Criminal, Part I, 765.
The trial court denied the request for this instruction for the reason that there was no evidence to show that the defendant was under the influence of alcohol so that it might have negatived his criminal intention. A trial court is not required to give a requested instruction unless the evidence reasonably requires it, and this is true even though the requested instruction asserts a correct rule of law.
Pollack v. State (1934), 215 Wis. 200, 210, 211, 253 N.W. 560, 254 N.W. 471; Weisenbach v. State (1909), 138 Wis. 152, 119 N.W. 843.
Our examination of the record persuades us that the trial court was entirely correct in refusing to give an instruction on intoxication. The record does not contain evidence to show that Mr. Belohlavek was intoxicated at the time or even on the day that the alleged crime was committed. Indeed, there does not appear to be any testimony to establish that he had been drinking on that day prior to the time that this alleged wrong took place.
There is evidence that he had been drinking on the night before the theft; there is also evidence that he purchased alcoholic beverages after the theft. However, that evidence does not establish that he was intoxicated at the time of the crime. This would also apply to Mr. Belohlavek's previous record of arrests in connection with drinking and to his having appeared to be intoxicated during the course of the actual trial of this case. In our opinion, none of these facts bear on whether the defendant was intoxicated at the time he acquired the purse from Mr. McHugh.
Mr. Belohlavek testified that he was at a bar on the morning of the day on which the purse was taken, but he did not testify that he had something to drink. An hour and one half later, he returned to the bar and met Mr. Steffen; however, there is no evidence that he engaged in drinking at that time. Indeed, the evidence discloses that he met Mr. Steffen outside the building in which the bar was located.
Finally, the defendant quotes statements of the assistant district attorney and the trial judge indicating that there was some evidence of drinking by the defendant on the day of the crime. These remarks are not supported by the actual testimony of the witness at trial, and, therefore, cannot be given great weight upon this review. Such statements, in the absence of supporting testimony, are not of sufficient force to warrant our holding that the trial court erred in its refusal to give an instruction on the defense of intoxication.
Mr. Belohlavek also seeks to have this court use its discretionary power under sec. 251.09, Stats., to reverse his conviction in the interests of justice. We exercise such discretionary power only when it is probable that justice has miscarried. Our examination of the evidence in this case does not warrant the conclusion that the conviction should be regarded as a miscarriage of justice, and we decline, therefore, to exercise the discretion afforded us in sec. 251.09. By the Court. — Judgment and order affirmed.
Lock v. State (1966), 31 Wis.2d 110, 118, 142 N.W.2d 183.