October 10, 1941 —
November 4, 1941.
APPEAL from a judgment of the circuit court for Waupaca county: HERMAN J. SEVERSON, Circuit Judge. Affirmed.
Wendell McHenry of Waupaca, for the appellant.
For the respondent there was a brief by the Attorney General, William A. Platz, assistant attorney general, and J. Kyle Anderson, district attorney of Waupaca county, and oral argument by Mr. Anderson and Mr. Platz.
Raymond Zuehlke was convicted of the crime of arson. The information contained four counts; the first was for the burning of a dwelling house, and the second, third, and fourth were for burning personal property. The conviction was on the first count only. Defendant's motions after the verdict were overruled and the defendant was adjudged guilty of arson in violation of sec. 343.01, Stats., and sentenced to a term of imprisonment of from two to five years in the state's prison at Waupun.
On November 24, 1940, at 11 p. m., a fire occurred in a one-story house in Fremont, Wisconsin, owned by defendant's brother. The fire started from an explosion. Six empty gasoline cans, five full ones, and one partly filled were found in the house. The house was insured and there was insurance covering household furniture, books, and other items of personal property. Defendant owned the books. The defendant was employed in the division of information of surplus marketing in the United States department of agriculture in Washington, D.C. On November 24th an airplane passenger, registered as R.C. Jones, and weighing one hundred sixty pounds, left Washington for Chicago. The flight arrived at Chicago at 1:47 p.m. A train on the North Western railroad left Chicago at 3:30 p.m. and arrived at Neenah, Wisconsin, at 7:45 p.m. Between 8:30 and 8:45 p.m. a man identified as the defendant bought six one-gallon cans of gasoline at one station and a little later a man so identified bought six more one-gallon cans at another station. The police chief of Neenah identified the defendant as seen carrying a number of bright-red gasoline cans. Shortly before 9 that evening a cab driver at Neenah agreed with a man giving his name as Jones to drive him to Fremont and from there to Cicero, Illinois. He drove the man to the vicinity of the house that was partly burned and waited there, but the passenger never returned. About 11 o'clock the driver heard an explosion and saw the fire. At about 4:20 a.m. a Greyhound bus was about to leave Fremont for Chicago. While the bus driver was taking the ticket of a passenger another man without a ticket entered the bus. This man later gave the conductor a $5 bill saying he wanted to go to Chicago. The bus driver identified the man as the defendant and a fellow passenger who observed him considerably on the trip also identified him. A witness who had known the defendant testified that the man who entered the bus resembled the defendant. Defendant had an injury to his face and powdery or singed hair. He was noticed to take a mirror from his bag and apply oil to his face and eyebrows. It was noticed that he attempted to throw a bunch of skeleton keys out of the bus window. Early in the trip the man wore a moustache. Later the moustache disappeared. This man left the bus at the intersection of Madison and Michigan avenues at Chicago. Defendant was not seen at his office in Washington before 5:30 p.m., November 25th. Both at that time and later when defendant was arrested the injury to his face was apparent. After the defendant's arrest the officers found at his desk in Washington a calendar pad, a number of index cards, and a cardboard calendar, all containing notations in defendant's handwriting, showing defendant had planned to set fire to this house evidently for the purpose of collecting insurance on his books and other property belonging to him. A few days later, a short distance from the house where the explosion and fire occurred, a pair of glasses was found in its case along with a cloth cleaner on which was printed the name and address of a Washington, D.C., optometrist. There was evidence that the glasses belonged to the defendant. It appears that at the time of the extradition hearing in Washington defendant asked the then district attorney of Waupaca county whether he would recommend probation if defendant would plead guilty. At a later date, in a hotel in Appleton, during a conversation with a deputy fire marshal, defendant is reported to have said that he would plead guilty if it were not for the fact that it would drive his mother crazy. There are other incriminating circumstances unnecessary to mention. Further facts of consequence in this decision will be referred to in the opinion.
Defendant complains that he was prejudiced by the refusal of the trial court to grant a change of venue from Waupaca county, by the refusal to suppress evidence, by the erroneous admission in evidence of statements claimed to have been made by him to various people, by erroneous instructions to the jury, and by the selection of a jury from an incomplete panel.
The evidence sustains the conviction. The ruling upon the motion for a change of venue must be sustained. There was a strong showing on the part of the state that public sentiment in the county was such that a fair trial of the defendant could be had. No sufficient showing of excitement or prejudice that would interfere with defendant's rights was made. The affidavits in opposition to the motion which were filed by the state answered the objections raised by the defendant. The correctness of the conclusion of the trial judge in that respect was demonstrated by the fact that no difficulty was encountered in securing a fair and unbiased jury. Krueger v. State, 171 Wis. 566, 576, 177 N.W. 917; State v. Smith, 201 Wis. 8, 10, 229 N.W. 51; Schroeder v. State, 222 Wis. 251, 254, 267 N.W. 899.
Testimony of witnesses who identified appellant and the circumstantial evidence presented at the trial shows a carefully arranged plan on his part to do the very thing he has been convicted of doing. While appellant pleaded not guilty, no evidence was offered on his behalf which would in any way explain his conduct or modify the effect of his presence at the scene of the crime, his purchasing of material calculated to cause the conflagration, and his carrying it into the house which he proposed to burn. His mismanagement of the material to be used in setting fire to the house resulted in an explosion and an alarm ahead of the time he had planned to have the fire occur. He sustained injuries as the result of the explosion. His face was burned and his hair was singed. The excitement resulting from this unexpected disturbance of his plans caused him to leave his glasses and glasses case behind. The latter contained an address which at once directed suspicion toward the appellant. His arrest at Washington, D.C., followed in a few days and the particles of evidence discovered by the fire marshal and police began to fit themselves together so perfectly that no reasonable doubt as to appellant's guilt can exist after a review of the evidence. For some time before the attempt he had been planning the burning of the house and the destruction of his personal property which was in it. Some of the evidence to the admission of which appellant objected consisted of memoranda made by him of experiments as to the length of time a candle would burn and of details of the plan which he had in mind. Alleged errors claimed to have been committed in securing his conviction are chiefly based on the general proposition that the trial court erred in admitting in evidence papers, documents, articles of clothing, and other personal property because obtained by an unlawful search and seizure, and contrary to appellant's constitutional rights under the Fourth and Fifth amendments to the United States constitution and secs. 8. and 11, art. I, of the Wisconsin constitution. Appellant moved for the suppression of the evidence and the return of the property to him at the beginning of the trial. In disposing of this motion the trial court took the evidence offered by each party and upon consideration concluded "that the defendant consented to the search and seizure prior to the time that the articles were taken," and denied the motion to suppress. This ruling would have to be upheld if the objection were good and were it necessary under the circumstances to have appellant's consent. But in view of the manner in which the papers found in the agricultural department in Washington were acquired by the police and the nature of the articles such as the coat and hat worn by appellant in traveling to and from Fremont, the validity of the objection does not exist. Evidence taken from defendant's apartment lacked much in persuasive power and was apparently so considered by appellant. It consisted of a leather jacket, maps, and bus, railroad, and air-line schedules. The record shows that the jacket was returned to appellant without being used as evidence, and that when the timetables were offered in evidence defendant's counsel said there was no objection.
The next articles offered in evidence to which appellant objects were taken from his desk in a department of agriculture building where defendant worked. His desk was property over which he could not exercise private control. This was not his castle nor was the possession of those papers at the time of their taking in any way connected with his person. The papers consisted of the memoranda referred to and an auger which had been secured for the apparent purpose of replacing one appellant had lost at the time of the explosion in the house in Fremont. There is nothing in the procedure by which the officers reduced these memoranda to possession which amounts to an unlawful search. They asked permission of appellant's superior before searching the desk and did so only after receiving proper permission. The fact that they were papers did not invest them with any special sanctity to exempt them from search and seizure. He had no special property or possessory rights in the desk he was using and in no sense of these particular guarantees of the constitution could his rights be said to be invaded. United States v. Kaplan (D.C.), 286 Fed. 963, 969. At the particular time they were taken these articles were no more in his possession than if he had handed them to a stranger as he fled from the scene of the crime. Had the keys which he attempted to throw out of the bus window actually been disposed of and later found, they certainly could have been used in evidence for such bearing as they might have on the question of his guilt.
The protection against unlawful search and seizure provided by those clauses in the federal and state constitutions was the result of a reaction to the high-handed injustice of permitting punishment to be inflicted on persons suspected of crime in order to compel them to admit their guilt. The situation presented here is far removed from those which the unreasonable search and seizure provisions were designed to cover. Since the evidence here was obtained by means not amounting to a violation of his constitutional rights his motion to suppress the evidence and prevent its use upon the trial was rightly denied.
"A party is privileged from producing the evidence but not from its production," said Mr. Justice HOLMES in Johnson v. United States, 228 U.S. 457, 458, 33 Sup. Ct. 572, 57 L.Ed. 919, and this court held in Voluntary Assignment of H. M. Warner Co. 203 Wis. 65, 68, 233 N.W. 631, that "the rights of one who by force of circumstances in response to impulse or dictates of conscience, by accident or inadvertence, places in the keeping of an assignee . . . or other person, incriminating evidence, are not violated by compelling the . . . person in possession, to produce such evidence in criminal proceedings."
When the appellant was placed under arrest in the department of agriculture building he told the officers that he had not worn a coat or hat as he lived near where he worked. The coat and hat which were later taken into possession by the officers and offered in evidence were left hanging in that office. He had abandoned them and can now claim no unlawful seizure of them. Schenck ex rel. Chow Fook Hong v. Ward (D.C.), 24 F. Supp. 776. The coat was of a reversible type. It had a tan side and a dark side. The defendant in his trip to Fremont wore this coat one time with the tan side exposed and at another time with the dark side out. Not only did he make this effort to obscure his identity but it appears that he at times wore a false moustache. The point of objecting to the use of the hat and coat of course was to keep out of the evidence a link in the chain of circumstances leading to his identification. But such portions of a person or attire as are customarily open to observation are legitimate sources from which witnesses may give testimony of the result of such observation. In Thornton v. State, 117 Wis. 338, 347, 93 N.W. 1107, where a defendant's shoes were taken and fitted into tracks at the place where an assault had occurred, Mr. Justice DODGE, speaking for the court, said:
"Within this rule it would have been entirely competent for the sheriff or any one else to have noticed the shoes of the plaintiff in error, and to have testified, so far as he was able, to a comparison between them and the footprints near the place of assault. . . . We are satisfied that the required surrender of defendant's shoe did not constitute any unreasonable search or seizure, and that the form and outline of one's shoe are not so naturally secret that the enforcing opportunity to observe them requires of the accused a disclosure of a fact which he has any right to withhold, so as to constitute any infringement of the constitutional command that he be not compelled to be a witness against himself."
This doctrine finds support in Rogers v. State, 180 Wis. 568, 193 N.W. 612, where the accused was required to put on certain clothes and a cap and sit in an automobile to enable a witness to determine whether or not he could positively identify the accused.
We find no error in admitting the testimony of the fire marshal as to statements made to him by the appellant. It appears that the fire marshal advised appellant to plead guilty, saying that it might result to his advantage because of the saving of expense incident to a trial. It was then testified that appellant said in substance that he would plead guilty but for the effect it would have on his mother. He knew that he was accused of the crime and yet he did not deny it. He had already asked the district attorney if he would recommend probation if he pleaded guilty. The conversation falls within the rule where the statements of fact of his guilt and his failure to deny are admissible as evidence of his acquiescence to, the truth of the accusation. McDonald v. State, 193 Wis. 204, 212 N.W. 635; Collins v. State, 115 Wis. 596, 92 N.W. 266; 2 Wharton, Crim. Ev. (11th ed.) p. 1089, § 656.
Counsel for appellant calls attention to the fact that at the time the jury was selected there were only thirty-three jurors on the panel instead of the thirty-six required by statute. It was within the discretion of the trial judge to determine the necessity of drawing additional names. Rounds v. State, 57 Wis. 45, 50, 14 N.W. 865; Emery v. State, 101 Wis. 627, 644, 78 N.W. 145.
Error is also assigned as to the instructions to the jury. We find no prejudicial error. With respect to the refusal to grant a new trial because of the failure of the state to prove ownership of the property as alleged in the information, it is considered sufficient to say that there was evidence to sustain the findings that the ownership of the property was proved as alleged and it is sufficient to support the conviction. We agree with the learned assistant attorney general that the evidence of appellant's guilt is overwhelming.
By the Court. — Judgment affirmed.