May 13, 1966. —
June 7, 1966.
APPEAL from a judgment of the circuit court for Dodge county: JOSEPH E. SCHULTZ, County Judge of Dodge county, Presiding. Affirmed.
The cause was submitted for the appellant on the brief of Frank D. Woodworth of Beaver Dam, and for the respondent on the brief of Bronson C. La Follette, attorney general, William A. Platz and Betty R. Brown, assistant attorneys general, and John P. Kaiser, district attorney of Dodge county.
The appellant, Harold Thompson, was convicted of the crime of theft on February 25, 1964, and sentenced to an indeterminate term of imprisonment not to exceed fifteen months in the Wisconsin state reformatory at Green Bay. On March 31, 1964, he was transferred from the reformatory to the Wisconsin correctional institution at Fox Lake.
Mr. Thompson was last seen by the institutional personnel at Fox Lake at about 8 p. m. on April 30, 1964, and was found to be missing at the time of the bed check at 9 p. m. that same day. On December 2, 1964, the appellant was found in custody of the Belleville, Illinois, police authorities. An employee of the Fox Lake institution was sent to Belleville and returned the appellant to the institution on December 3, 1964.
Mr. Thompson was charged with the crime of escape in violation of sec. 946.42 (3) (a), Stats. He was represented by counsel, entered a plea of not guilty to the charge, and after a trial to a jury was convicted and sentenced to a term of imprisonment not to exceed three years, the sentence to run consecutively to any other sentences previously imposed. There was no motion for a new trial or to set aside the verdict for insufficient evidence.
" 946.42 (3) Any person in custody under any of the following circumstances who intentionally escapes from custody may be imprisoned not more than 5 years:
"(a) Sentenced to a state prison; . . ."
" 946.42 (5) In this section:
"(a) `Escape' means to leave in any manner without lawful permission or authority;
"(b) `Custody' includes without limitation actual custody of an institution or of a peace officer or institution guard and constructive custody of prisoners temporarily outside the institution whether for the purpose of work or medical care or otherwise. . . ."
The appellant claims that the state failed to establish beyond a reasonable doubt that he was in custody at the time of his escape. The appellant points out that the statute speaks in terms of an escape from "custody." Sec. 946.42 (3) (a), Stats.
Mr. Thompson was transferred from the Wisconsin state reformatory at Green Bay to the correctional institution at Fox Lake, and it is his contention on this appeal that the state failed to prove that there had been compliance with the procedures and transmittals necessary for his transfer under secs. 46.11 (1), 53.18 (4) and 959.052, Stats. Thus, the appellant contends that the state failed to prove beyond a reasonable doubt that he was in the "custody" of the Fox Lake correctional institution prior to his alleged escape.
In effect, this appeal is a challenge to the sufficiency the evidence supporting the conviction. Mr. Thompson was represented by legal counsel at the trial and upon this appeal. The appellant made no motion in the trial court for a new trial, nor did he move to have the verdict set aside on the grounds of insufficient evidence. Accordingly, Mr. Thompson does not have the right to have the evidence reviewed upon appeal. State v. Van Beek, ante, p. 51, 141 N.W.2d 873; Sparkman v. State (1965), 27 Wis.2d 92, 95, 133 N.W.2d 776; Dascenzo v. State (1965), 26 Wis.2d 225, 236, 132 N.W.2d 231.
As in the Van Beek Case, we perceive no circumstances in the instant case which would warrant our relieving Mr. Thompson of the responsibility to have made a proper motion to the trial court. It follows that the judgment of conviction must be affirmed for the reasons discussed in State v. Van Beek, supra.
By the Court. — Judgment affirmed.