Opinion
January 21, 1949. —
February 15, 1949.
ERROR to review a judgment of the circuit court for Fond du Lac county: CLARENCE E. RINEHARD, Circuit Judge, Presiding. Affirmed.
J. E. O'Brien of Fond du Lac, for the plaintiff in error.
For the defendant in error there was a brief by the Attorney General and William A. Platz, assistant attorney general, and Jerold E. Murphy, district attorney of Fond du Lac county, and oral argument by Mr. Platz and Mr. Murphy.
Plaintiff in error (hereinafter referred to as "defendant") was convicted on May 29, 1948, of the crime of taking improper liberties with minors in violation of sec. 351.41, Stats., and sentenced to a term of two years in the Wisconsin state prison at Waupun. The action was commenced by issuance a warrant on July 22, 1947.
On July 19, 1947, Richard, age nine, and his brother, Ronald, age seven, were playing in a park about two and a half blocks from their home in Fond du Lac, Wisconsin. While there a man whom they described as tall, slim, and dark, with a funny nose, approached them and offered them rides on his motorcycle. The boys said that the motorcycle was a blue Harley-Davidson. They also seemed to be definite about the fact that the man was wearing a blue cap and brown moccasin shoes. Richard went for a ride first; then Ronald. The boys were not sure what time this happened. However, they left the park about 5:30 and arrived home at a quarter to six.
The boys told their mother about having rides on a motorcycle. She scolded them for riding with strangers. When their father arrived home, they told him about the rides, too. They told him that the man had taken them out to a place in the city dump and behind a clump of bushes, that he asked to see their private parts and offered to show them his. Ronald said that he showed the man his. The boys gave a description of the man and his motorcycle to their father who reported the affair to the police. On July 21, 1947, the police suggested that the father have the boys take a look at a man working at a filling station. When the boys passed the filling station the defendant was recognized as the man with whom they had been at the park. That evening the police had the defendant at the police station for questioning. Richard observed him and another man. He picked out the defendant as the man who had given himself and his brother rides.
The warrant issued on July 22, 1947, charged the defendant with having attempted to commit the felony of taking improper liberties with a minor. Preliminary examination was set for July 31, 1947. In the meantime the boys told their father more of what had occurred. They disclosed that the defendant had taken down their trousers and played with their privates. A second complaint was then made charging the defendant with the crime of taking improper liberties with the privates of a minor by the use of his hand.
At the preliminary examination in municipal court the district attorney pointed out that there were two complaints on file against the defendant and moved that the first complaint charging the attempt to commit the felony be dismissed. On the objection of the defendant's attorney, the court denied the motion. As a result of the preliminary examination the defendant was bound over to the circuit court. On May 28, 1948, the district attorney filed an information containing two counts. In the first count the charge was taking improper liberties with the privates of minors, Richard and Ronald, by the use of the hand; in the second count the charge was an attempt to commit the felony of taking improper liberties with a minor.
In the circuit court the defendant waived a jury. On a plea of not guilty there was a trial to the court. At the trial defendant's attorney moved that the prosecution be required to elect which count of the information it would proceed on. Defendant also moved the court to quash the information on the ground that the two counts were contradictory. Both motions were denied.
Defendant was found guilty of taking improper liberties with the privates of both minors in violation of sec. 351.41, Stats., which provides: "Improper liberties. Any person who shall indecently assault and take improper liberties with the privates of any minor by the use of the hand, or who shall voluntarily permit the use of his own privates in such manner by any minor, shall be punished by imprisonment in the county jail not less than thirty days nor more than six months, or by imprisonment in the state prison not exceeding two years."
He was sentenced on the conviction to two years in the Wisconsin state prison at Waupun.
On June 23, 1948, by a writ of error the judgment and sentence against him were brought to this court by plaintiff in error.
The defendant on his appeal contends that the trial court erred in several particulars: (1) In overruling the plea in abatement because of no preliminary examination and no waiver of it; (2) in refusing to quash the information and to require the prosecution to elect between two alleged contradictory counts in the information; (3) in imposing a determinate sentence of two years imprisonment in Waupun; (4) in finding the defendant guilty on the evidence.
(1) The point sought to be made that there was no preliminary examination is .without merit. The record shows that a preliminary examination was held. At that time the district attorney pointed out that all the facts had been brought out since the first complaint charging an attempt to commit a felony was lodged. He asked that the first complaint be dropped and the proceeding be on the second complaint which charged the offense of taking improper liberties with the minor boys. On the objection of the defense attorney, the motion was denied.
It appears, then, that defendant's criticism is directed to the fact that no preliminary examination was held expressly on the complaint charging the commission of the crime. Defendant contends that without an examination devoted to that complaint the district attorney could not charge that crime in the information. It is well settled that this is not the law. In State ex rel. Kropf v. Gilbert, 213 Wis. 196, 201, 251 N.W. 478, this court stated:
". . . it must be noted that under sec. 355.17, Stats., a district attorney, in filing an information, is not restricted to the crime stated in the complaint made before the examining magistrate, but that he may file an information setting forth the crime committed according to the facts ascertained on such examination, whether it be the offense charged in the complaint upon which the examination was had or not."
See also Dahlgren v. State, 163 Wis. 141, 157 N.W. 531; Bianchi v. State, 169 Wis. 75, 171 N.W. 639; Faull v. State, 178 Wis. 66, 189 N.W. 274; Hobbins v. State, 214 Wis. 496, 253 N.W. 570; State ex rel. Dinneen v. Larson, 231 Wis. 207, 284 N.W. 21, 286 N.W. 41; State v. Neukom, 245 Wis. 372, 14 N.W.2d 30.
(2) Contrary to defendant's contention it is accepted practice to charge both the attempt and the commission of the crime in the information. 31 C.J., Indictments and Informations, p. 782, sec. 345, note 65;42 C.J.S., Indictments and Informations, p. 1141, sec. 180, note 92; sec. 355.14, Stats.; Gutenkunst v. State, 218 Wis. 96, 259 N.W. 610; 27 Am.Jur., Indictments and Informations, p. 687, sec. 129; sec. 357.09, Stats.
As a matter of good pleading an error does appear in the information: There is duplicity in the first count in that it charges two distinct crimes, one relating to Richard and the other to Ronald. The error, however, is not considered prejudicial. The trial and conviction on both counts is in this case to defendant's advantage. The only way in which the error could result in injury or prejudice to the defendant would be in the admission of evidence which otherwise would have been excluded. The record shows that no unfair or improper evidence was admitted because the two crimes were charged in the same information. The same evidence properly would be used to establish either crime; the same witnesses would have testified. There has been no legally prejudicial effect on the defendant's defense because of the error. Cornell v. State, 104 Wis. 527, 80 N.W. 745; Herde v. State, 236 Wis. 408, 295 N.W. 684.
(3) Defendant's third contention is taken care of by sec. 359.05, Stats., which provides in part:
"If, through mistake or otherwise, any person shall be sentenced for a definite period of time for any offense for which he may be sentenced under the provisions of this section, such sentence shall not be void, but the person shall be deemed to be sentenced nevertheless as defined and required by the terms this section."
(4) There remains the problem of whether the evidence is sufficient to sustain a conviction of guilty. Two questions are presented here: (1) Was there a crime committed, and (2) was the defendant the person who committed it?
On the question of such a crime being committed, the defendant suggests that the boys probably made up the story to cover up for being late. His main basis for this is the fact that the two boys added facts to their story between the time the incident was first reported to the police and the preliminary examination.
The evidence does not support this theory. In the first place, the boys were not late. Their father testified to that. They were not scolded for being late. They were scolded for riding with a stranger. In the second place, at the trial both boys were very firm about a man having given them the ride and having actually touched them. Both gave the route taken in detail; Richard gave it on the way out and on the way back. Both gave bits of the conversation between them and the stranger, such as that Richard gave in his testimony: "And then he said, `Does that feel good?' and I said, `No.'" In the record there is other evidence and testimony corroborating that of the boys, but it is unnecessary to discuss it here. The trial court Was clearly warranted in finding that the crime had actually been committed.
The second question is: Was the defendant the person who committed the crime? An examination of the testimony requires us to uphold the trial court on this point also. The boys described the defendant generally but definitely. The description coupled with the fact that the boys picked him out on a number of occasions as the man who had given them the rides was sufficient identification. Both boys were young and easily confused on cross-examination. But a reading of the testimony in context shows that they were consistent in maintaining that the defendant was the man.
Defendant also complains of the admission of hearsay evidence on Richard's identification of the defendant through the one-way glass at the police station. Marvin Boede, the police officer who was present, testified: "And I picked him [Richard] up and raised him up because the glass is a little too high for him, and he pointed this Mr. Johnson out as the man who had him in the park." This is not hearsay evidence. Mr. Boede was testifying to something he saw, something Richard did in his presence. He was relying on what he observed and not what the boy told him.
By the Court. — Judgment affirmed.
BROADFOOT, J., took no part.