Opinion
January 11, 1952 —
February 5, 1952.
APPEAL from a judgment of the circuit court for Polk county: CARL H. DALEY, Circuit Judge. Affirmed.
For the appellant there was a brief by Doar Knowles of New Richmond, and E. Nelton of Balsam Lake, and oral argument by John Doar, W. T. Doar, Jr., and Warren P. Knowles III.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, and oral argument by Mr. Platz.
Action by the state of Wisconsin against the defendant James Johnson for violation of sec. 340.40, Stats. Upon a jury verdict of guilty, defendant was convicted and sentenced to imprisonment in the Wisconsin state prison for a general and indeterminate term of not less than one year nor more than nine years. Defendant appeals.
On May 7, 1949, Veloyce Espe and Janet Thode, sixteen-year-old students of Amery high school, having attended a music festival at River Falls State Teachers College, left River Falls in a school bus at approximately 10 p.m. to return to the Espe home. The Espe farm is located on the east side of State Highway 46 two miles north of Deer Park. The driveway extends in an easterly direction from the highway toward the farm buildings and is approximately sixty-five rods long. At about 11:15 p. m., the school bus stopped on the highway at the driveway and Veloyce and Janet got. out.
The two girls had walked east along the driveway for about three quarters of a block when they noticed a car turn into the driveway. It passed them, turned around some distance ahead of them and returned, stopping alongside them. They observed that the driver was alone in the car. He got out and said "Hi, girls." Janet noticed that he had in his hand an object about a foot long. The man immediately attacked Veloyce, striking her on the top of the head with a "hard object." When he hit Veloyce, Janet started to run up the driveway toward the farmyard. After being struck Veloyce broke away and ran across a field toward a clump of trees in the general direction of the house. The assailant then ran after Janet, seized and hit her about the face. When she broke away she ran to the house where she saw Mrs. Espe and screamed, "He has Veloyce." In the meantime the assailant caught up with Veloyce in the field near the trees and struck her again about the head and face. Veloyce had turned around and had seen him coming. He said, "Not dead yet, eh," and "Will you go with me?" She was finally struck to the ground, and the man left her.
Veloyce was later taken to the Cornwall Clinic at Amery where she received medical treatment for skull fracture and face bruises from Dr. Kremser. She was hospitalized for two weeks. As described by the doctor, the skull fracture was a depression circular in shape and about the size of a twenty-five cent piece. It was his opinion the injury had been caused by a blunt instrument.
Mr. Espe, father of Veloyce, who had been aroused from sleep by Janet's entry, dressed and drove his car down the driveway in search of the assailant and the girl. Not finding either, he drove to a neighboring farmhouse where he telephoned the sheriffs of Polk and St. Croix counties, and then returned to make an inspection of the driveway and the vicinity. The next morning they made a further inspection and located the point at which the assailant's car had stopped by the presence of tire marks. in the ditch at the side of the driveway.
Near the clump of trees Mr. Espe found a purse and part of a bar of peppermint candy. Between that point and the place on the driveway where the car had stopped he found a hammer handle, and near where the car had stopped he found the head of a hammer, the two objects being about eighty feet apart.
Both girls testified that the car driven by the assailant was rather new, dark in color, and had a sloping back. Its lights were very bright, and they were blinded when the car stopped. Veloyce said she saw the man later when he struck her in the field; that he did not wear a cap and that he wore light-colored trousers. Janet's description of the assailant was that his outline was that of a short, broad build and he appeared to have light hair.
On June 1, 1949, Veloyce accompanied the district attorney, Janet, and Mrs. James Moore, wife of the sheriff, to the Pure Oil station in New Richmond. There she saw the attendant, who was James Johnson, the defendant. She was asked on the trial, "State whether or not that was the same James Johnson that you saw on the night you were struck" and answered, "It is." Janet Thode could not identify the defendant as the assailant.
Neither Veloyce nor Janet had seen or known the defendant before the night of the assault.
Attorneys for the defendant served a notice of alibi claiming that between 11 and 11:30 on the night of May 7, 1949, James Johnson was at Boardman, having just previously been in New Richmond and having later returned to New Richmond. No witnesses were named in support of the alibi and none testified on the trial except the defendant.
Defendant testified that he worked at his mother's Pure Oil filling station in New Richmond from about 8 p.m. until 10:30 or 11 p.m. on May 7, 1949. Early that evening he had a conversation with Earl Boor, Paul Singerhouse, and Kenneth Kohlrush who told him they were going to attend a dance at Boardman, and defendant told them he would probably see them there. After closing the station he stopped in at the Cozy Nook ice-cream parlor and then at a pool hall. He arrived at the dance hall at Boardman at 11:15 or 11:30, stayed there for ten or fifteen minutes but did not see his friends. He then returned to New Richmond. On the way back he testified he stopped several times to fix the headlights on his car, and finally drove into New Richmond with the lights out, avoiding the main street because he had no lights and approaching the filling station from the east. There he turned on the station lights, fixed the lights on the car, and went home, arriving there shortly after midnight.
Lois Strese, one of the state's witnesses, testified that after midnight on May 7, 1949, she was standing on the corner where the station is located and observed a car coming from the east with headlights out, driven by defendant, turn into the station. She saw the station lights turned on and the defendant lift the hood of the car.
Earl Boor, Paul Singerhouse, and Kenneth Kohlrush testified they had been at the dance at Boardman from 9:30 p.m. till 1 a.m., but did not see defendant there.
It was established at the trial that defendant drove a green 1947 Plymouth sedan, which had a sloping back.
Further facts will be stated in the opinion.
The first question presented upon appeal is whether there was ample evidence of identification of the defendant to sustain the jury verdict.
Veloyce Espe made a positive identification of the defendant. She was asked, "Who was in the car?" and, over objection, answered, "James Johnson." Again, over objection, she replied that she was sure it was James Johnson.
Counsel contends that Veloyce Espe could not have had the opportunity to so observe her assailant as to identify him. The assault took place late at night; she was blinded by the lights of the car; she ran from him; she struggled with him. The girl, however, testified that it was a bright moonlight night; that although she was blinded by the lights right after the car stopped beside her, she later turned around and saw him running after her; that while they struggled in the field she had opportunity to observe him.
The argument is made that both girls had equal opportunity to observe the assailant, and yet Janet Thode could not identify him as James Johnson.
Veloyce saw the man twice, and testified that she observed him better when she saw him the second time, after she had run into the field and he caught up with her near the trees. Janet did not have the same opportunity. Moreover, at the time of the second assault, Veloyce heard the assailant's voice again, when he said, "Not dead yet, eh" and "Will you go with me?" Attempts on cross-examination to shake her certainty as to identification failed. Nothing in her testimony indicates that her identification of James Johnson as the assailant was only an opinion based on descriptive facts regarding the appearance of the man who assaulted her. She was not permitted to state the basis for her identification, objection to that question being sustained by the trial court.
So far as Janet's inability to identify the defendant is concerned, the record does not disclose whether his physical characteristics were those of a big, broad build, light hair, and "quite short for a man, " but the jury was in a position to observe the defendant and draw its own conclusions.
A piece of peppermint candy had been found at the scene of the second assault upon the Espe girl. Detective Lieutenant McAuliffe of the St. Paul police department testified regarding a statement he took from the defendant when he was apprehended: "He said he had been to a restaurant at New Richmond. He may have bought some peppermint candy, although he didn't particularly care for it." On the stand defendant denied having peppermint candy with him on May 7, 1949. Veloyce Espe testified that she had no candy in her possession on the night of the assault. It was for the jury to decide whether this evidence connected James Johnson with the crime charged.
Under all the circumstances, it was for the jury to determine whether the testimony introduced by the state was such as to convince it beyond a reasonable doubt of the identity of the defendant.
The next question is whether the evidence was sufficient to establish the offense charged in the information.
Sec. 340.40, Stats., provides:
"Any person being armed with a dangerous weapon, or any firearm, whether loaded or unloaded, who shall assault another with intent to rob or murder, shall, upon conviction thereof, be punished by imprisonment in the state prison not more than thirty years nor less than one year."
Counsel contends that since the information charged the defendant with wilful assault with intent to murder with a dangerous weapon, to wit, a steel-headed hammer, it was incumbent upon the state to prove that the assault was made with a steel-headed hammer. Veloyce Espe testified that she was struck with a "hard object." Her doctor testified that in his opinion the skull fracture she suffered was caused by a blunt instrument. It must have been plain to the jury that whatever instrument was used to inflict such an injury was a dangerous weapon. Whether that weapon was in fact the hammer found at the scene of the assault, or some other object is immaterial. Schwantes v. State (1906), 127 Wis. 160, 106 N.W. 237. It is not necessary, therefore, to consider whether the circumstantial evidence regarding the hammer was sufficient to show that it was used by defendant in making the assault.
The evidence of defendant's intent to murder was ample to support the verdict. The jury could infer such intent from the natural and probable consequences of the assault; a blow sufficient to cause the fracture of Veloyce's skull might easily have caused her death. Moreover, the testimony of the victim that the assailant said "Not dead yet, ch" as he assaulted her the second time indicated an intent to kill.
Defendant contends that the trial court erred in denying a new trial on the ground that the atmosphere of the trial was prejudicial. Affidavits set forth that remarks by a county judge sitting in the audience at the time of trial to the effect that "This fellow will certainly be found guilty. They will show that he is a sex maniac," were made within the hearing of persons for a space of ten or fifteen feet. We do not see that such remarks, if made, influenced the deliberations of the jury, since it is not shown that any jurors did or could have heard them; and it is within the discretion of the trial court to decide whether any such misconduct prejudiced the defendant. Oborn v. State (1910), 143 Wis. 249, 126 N.W. 737.
Error is assigned in the trial court's instructions to the jury that "The state for conviction in this case relies upon circumstantial evidence." It is true that the state relied substantially upon the positive identification of one of its witnesses. Such error, however, if it was prejudicial, was prejudicial to the state, not to the defendant.
It is counsel's contention that the trial court entertained a "robust reasonable doubt" as to defendant's guilt and should, therefore, have granted a new trial. In its memorandum opinion the court said:
"It might be that if the writer had been sitting on the jury he would have voted for acquittal of the defendant. The writer might not have believed some of the witnesses, or might not have given the testimony of some of the witnesses the same credibility that the jury did. However, it seems to us that is not particularly material at this time. The question is not whether the court now believes the testimony of some of the witnesses who testified, but the question this court has to determine is whether there is testimony that the jury believed, and had a right to believe, sufficient on which to base the verdict they returned. . . .
"It is a serious question to pass on the guilt or innocence of a defendant in a close case, and this case is close enough that if the writer was a member of the jury he might not have voted guilty." (Emphasis ours.)
We do not believe that the language of the trial court indicates any such robust reasonable doubt as was evidenced in the statements of the trial court in Kuhl v. State (1918), 167 Wis. 495, 167 N.W. 743, and which this court held required a new trial. At most, the court said that it might have had a reasonable doubt of defendant's guilt, but such observation was immaterial. In State v. Hanks (1948), 252 Wis. 414, 416, 31 N.W.2d 596, this court said:
. . . the view of the trial court that it, as well as the jury, must be convinced beyond a reasonable doubt of defendant's guilt of the crime charged was error. . . . defendant is entitled to the judgment of the trial court that there was adduced upon the trial evidence which if believed by the jury and rationally considered was sufficient to prove his guilt beyond a reasonable doubt. This is the extent of this right. Defendant has no right to demand that the trial court and every member of this court be affirmatively convinced of his guilt beyond a reasonable doubt."
On July 5, 1950, after verdict and before sentencing, certain proceedings were had at the request of defendant's counsel, under sec. 357.13, Stats., to ascertain defendant's mental condition. We have read the record of those proceedings, but do not feel that a consideration of the testimony there adduced is necessary to a decision of the questions involved on this appeal.
By the Court. — Judgment affirmed.