No. State 76.
Argued December 2, 1970. —
Decided January 5, 1971.
APPEAL from a judgment and an order of the county court of Waukesha county: WILLIAM G. CALLOW, Judge. Affirmed.
For the appellant there was a brief by Henry Piano, and oral argument by Harold B. Jackson, Jr., both of Milwaukee.
For the respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, and William A. Platz, assistant attorney general.
The defendant-appellant in a trial to the. court (jury trial waived) was found guilty of burglary and theft contrary to secs. 943.10(1)(a), 943.20(1)(a), and 939.05, Stats.
On August 11, 1966, the home of Loretta and Victor Lang (brother and sister) of Muskego, Wisconsin, was burglarized and a safe containing approximately $22,000 in cash was taken. In addition, $3,000 in cash was taken from a writing desk in Victor Lang's bedroom.
At approximately 3:15 or 3:30 p.m. on the day of the burglary, Mrs. Marion Lange (no relation to the victims), working in a hardware store which she and her husband operated down the street from the Langs', saw a man park a white Ford with flipped-up Texas license plates in back of the store. She described the man as appearing to be of Spanish descent, but could describe him no further. The car then left the parking lot going north toward the Lang home, returned about five minutes later from the north, at which time it came into the hardware store driveway, turned around very fast and proceeded north again, turning into the Lang driveway. It was not observed by Mrs. Lange after that.
This car was observed by an auxiliary policeman on the same day between 3 and 3:30 p. m., approximately three to four miles from the scene of the burglary. He saw a man who appeared to be of Spanish descent and a blond man "resembling" defendant get out of the car; the former going to the front of the car and bending up the license plate; the blond going to the rear and bending over. When the car drove away, the rear license plate was bent up. The policeman followed the car and wrote down part of the license number. He could not positively identify defendant as the man he observed on the day of the burglary.
The owner of this car was of Spanish descent and was the brother-in-law of a friend of the defendant. It was parked behind the friend's house the day after the burglary.
On October 20, 1966, pieces of metal, identified as part of a lockbox which was in the stolen safe, were found in a garage on the premises where defendant had resided on the day of the burglary.
It was further established that defendant worked for a construction firm prior to the date of the burglary, but terminated his employment on or about that date. On the date of the burglary, the firm had a job within a half-hour's drive from the Lang residence. Although there was no direct evidence that defendant worked on the date of the burglary, four receipts for delivery of cement to that job were introduced, the first three bearing the written signature "Dick," the fourth merely printed "Dick." These slips were given to defendant a "couple of months" prior to trial.
On September 5, 1966, defendant purchased a mobile home, paying a cash down payment of $1,000, and the balance of nearly $2,000 in cash two. days later. Defendant's father-in-law had loaned defendant's wife $3,000 in September of 1966 out of funds he had hidden in his basement. The trailer dealer's bookkeeper testified the money (nearly $2,000) she found on the morning of September 8, 1966, attached to the defendant's sales slip, smelled "musty." The money used was in small denominations similar to that loaned defendant's wife by her father.
On September 6, 1966, defendant purchased an airplane for $8,250, paying cash in denominations of $100, $50, $20, and $10. He also paid the tax of $247.50 in cash on September 29th, and on October 8th he paid $299.51 in cash for flying lessons previously received, and $285.68 in cash for maintenance of the plane. The defendant had discussed the purchase of the plane prior to August 11, 1966, to enable him to engage in a business venture in South America.
On October 9, 1966, defendant left for South America in the plane with one of the instructors of the flight school, where he remained until about Christmas. During this time defendant spent at least $2,500 in cash, exclusive of his own expenses.
A warrant was issued for defendant's arrest on December 29, 1966. Defendant waived a jury trial, and the court heard the matter, finding defendant guilty on July 6, 1968. After a presentence report, the court sentenced defendant to an indeterminate term of not more than seven years in the Wisconsin state prisons on each count, sentences to run concurrently. The sentences were stayed and probation of six years imposed (first year in jail under Huber-law type regulations and privileges), defendant to pay restitution of $23,000. Defendant appeals from the judgment of conviction and from an order denying a new trial.
In addition to the usual contention on review that defendant-appellant's guilt beyond a reasonable doubt was not established by the evidence, one primary legal question is raised: Whether evidence of defendant's expenditures shortly after the date of the burglary was properly admitted.
Although courts agree that evidence of a defendant's financial condition after the time when the alleged perpetration of the crime took place is relevant, they disagree on the necessity of foundation evidence.
"It has been held that generally evidence of the wealth or poverty of the defendant is not admissible in a prosecution for larceny; however, evidence tending to show that the defendant had no money before a larceny but had a considerable amount afterward is admissible, since evidence of a sudden and unexplained possession of means about the time the larceny was committed has the tendency to connect the defendant with the crime where there are other circumstances to support it. This is generally true although the source of the money is not definitely traced or identified by the prosecution, but some courts take the view that such evidence is not admissible without evidence tending to identify the money in defendant's possession with that stolen. Generally, however, the foundation for the introduction of such evidence includes proof only of (1) the `impecuniosity' of the defendant just before the theft, and (2) the `sudden accession' of wealth (3) contemporaneous with the theft. Some courts hold that where the source of the money is not traced, evidence of money found in the possession of an accused is inadmissible unless there has first been evidence tending to establish the impecunious condition of the accused prior to the perpetration of the crime with which he is charged. However, other courts have taken the view that such evidence is admissible without a showing of defendant's prior impecunious condition, the weight of the evidence. in such case being for the trier of fact."
What appears to be the majority of courts require either a tracing of the source of the funds or, in the absence thereof, a showing of the defendant's prior impecunious condition. It is often difficult to determine a particular court's position on the matter (1) because of the use of such phrases as "sudden acquisition," implying prior impecuniosity, often despite the complete lack of such evidence; (2) there is usually present some evidence of the defendant's financial condition prior to the offense; (3) the particular issue is often the sufficiency of the evidence to sustain a conviction. In addition, the necessary foundation is often, in practice, very slight.
Some courts, however, explicitly require no foundation, admitting evidence of a defendant's possession of a large amount of money or the making of large expenditures and leaving the weight to be accorded such evidence to the trier of fact. Although the California Court of Appeals had originally required foundation evidence, that court later reversed its position, stating:
State v. Cofer (1952), 73 Idaho 181, 249 P.2d 197; People v. Coleman (1968), 14 Mich. App. 515, 165 N.W.2d 615; State v. Parr (1964), 64 Wn.2d 921, 395 P.2d 196. Illinois and Iowa appear to have taken the same position: People v. Nicholson (1965), 55 Ill. App.2d 361, 204 N.E.2d 482; State v. Hobbs (1961), 252 Iowa 439, 107 N.W.2d 242.
". . . The correct rule is that such evidence is relevant and admissible, but that the weight thereof is for the trier of fact."
Perrin v. State (1892), 81 Wis. 135, 50 N.W. 516.
However, this court's position on the liberal admission of circumstantial evidence is clear:
"The general rule as to the admissibility of circumstantial evidence in criminal cases is stated as follows in 20 Am. Jur., Evidence, p. 261, sec. 273:
"`The modern doctrine is extremely liberal in the admission of any circumstances which may throw light upon the matter being investigated, great latitude must be given the state in the production of its evidence in proof of criminal charges. . . . in no case is evidence to be excluded of facts or circumstances connected with the principal transaction from which an inference can be reasonably drawn as to the truth of a disputed fact. All facts tending to elucidate the matter under discussion which are referable to the point in issue tend to exhibit the res gestae or to establish a chain of circumstantial evidence in respect of the act charged. It is necessary only that they tend to. prove the issue or constitute a link in the chain of evidence. Evidence of circumstances which tend to connect the accused with the commission of a crime is properly admitted, even though inconclusive in character. Such evidence is competent to establish many varying facts.'
"This court has stated that circumstantial evidence may be and often is stronger and more satisfactory than direct evidence. See State v. Johnson (1960), 11 Wis.2d 130, 135, 104 N.W.2d 379. The dissenting opinion in the Johnson Case also recognized that most cases involving the crime of burglary rest to a very great extent, if not solely, on circumstantial evidence due to the secretive nature of the crime."
As a practical matter, it is difficult to conceive of a case wherein some foundation evidence will not be presented, since without such additional evidence the state would fail to sustain its burden. In the instant case such evidence was presented: that defendant's income for six months prior to the burglary was approximately $6,000, less than his total cash expenditure during the period here involved; that he had borrowed $3,000 from his father-in-law; that he quit his job contemporaneous with the burglary; that the plane he purchased was available for two weeks before his actual cash purchase shortly after the burglary — all these circumstances tend to establish a change in defendant's financial condition and indicate a "sudden acquisition" of funds. These facts, combined with his rather unusual expenditures, are highly relevant to the issue of his guilt.
As Mr. Justice HOLMES stated in Commonwealth v. Mulrey:
". . . The evidence by itself of course did not prove criminal conduct. But it is not necessary that every piece of evidence admitted should be sufficient by itself to prove the crime. Evidence which would be colorless it stood alone may get a new complexion from other facts which are proved, and in turn may corroborate the conclusion which would be drawn from the other facts. Commonwealth v. O'Neil, 169 Mass. 394. It is possible that Mulrey may have had an independent fortune from which his deposits came, but that was open to him to prove if he saw fit, and was not the probability with regard to one who was working in his place and for his pay. The evidence properly was admitted, . . ."
Defendant argues that to admit evidence of defendant's expenditures occurring after the time of alleged perpetration of the crime, without a showing of his prior financial condition, requires the defendant to explain these expenditures and that this would be a violation of his rights against self-incrimination. This contention has no merit.
In the first place, no defendant's rebuttal evidence is necessarily limited to his own testimony. Other evidence, documentary or testimonial might obviously be presented to establish the source of the funds. In fact, in this case defendant presented testimony of his father-in-law as to the source of $3,000 of the total expended by him during the period here involved.
Second, even if the state were required to lay a foundation, the burden would still be on defendant to present evidence to rebut that of the state; in fact his burden would be even greater. Hence, the question of the necessity of the preliminary foundation has little bearing on defendant's contention.
Third, in any situation where the state presents evidence against a defendant, whether direct or circumstantial, the defendant will be required to rebut it. Although not a necessity, often the only evidence a defendant can present will be his own. denials. Clearly such defendants are not denied their right to refuse to testify; it is simply a matter of strategy within the context of the practical exigencies of the particular case.
We conclude therefore that the evidence of expenditures after an alleged crime is admissible without the state first laying a prior foundation of the prior relative impecuniousness of defendant before the event' of the alleged crime. The evidence is relevant and admissible; the weight of such evidence is for the trier of fact.
As to the sufficiency of the evidence to support the court's determination of guilt we repeat what we said in Bethards v. State:
"This court has often stated that before it will reverse a conviction because of insufficiency of the evidence,
"`. . . 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."'
"Much of the state's case against the defendant is based on circumstantial evidence. However, it is well established that a finding of guilt may rest upon evidence which is entirely circumstantial. Indeed, although each element of a crime must be proven beyond a reasonable doubt, each element may be proven beyond a reasonable doubt by circumstantial evidence alone.
"After our review of the record in this case, we are entirely satisfied that while the circumstantial evidence presented is not overwhelming, it clearly is sufficient to satisfy the test set forth in Lock v. State [(1966), 31 Wis.2d 110, 142 N.W.2d 183]."
Considering all the testimony, not merely any single part of it, in a light most favorable to the state and conviction, we are convinced that the evidence was not so insufficient that the courts could not find this defendant guilty beyond a reasonable doubt. The web. of evidence, albeit mostly circumstantial, describing the activity of the mysterious car and its occupants, the location of the defendant at employment in the area, the tracing of pieces of the lockbox in the stolen safe, the early September, 1966, spending by defendant, was sufficient to reasonably convince a trier of fact of this defendant's guilt.
Defendant finally urges this court to exercise its discretionary power under sec. 251.09, Stats., and grant him a new trial in the interest of justice.
"[A] new trial will be granted in the interests of justice only where it appears that the defendant ought not to have been convicted and that a new trial conducted under optimum conditions would probably result in an acquittal."
Defendant has offered no reasons why this court should exercise its discretion in this case, and none appears to exist. It is not probable that there has been a miscarriage of justice. By the Court. — Judgment and order affirmed.