Carter v. State

134 N.W.2d 444, 27 Wis. 2d 451, 1965 Wisc. LEXIS 929

• Court: Wisconsin Supreme Court
• Decided: April 27, 1965
• Status: Published

Opinions

Hallows, J.

The issue presented is whether an unarmed getaway-car driver or lookout is guilty of armed robbery when his confederates or accomplices commit a robbery while armed with a dangerous weapon. The defendant argues that although a plea of guilty is in effect a judgment by confession, when the evidence taken upon such plea shows without question the defendant is guilty only of a lesser offense than is charged in the complaint, a judgment of conviction of the more-serious offense cannot be sustained.

Armed robbery is a separate crime from robbery, being robbery committed with a dangerous weapon and carries a maximum penalty of thirty years instead of ten years as for robbery. Sec. 943.32, Stats. No claim is made that defendant was not an accomplice of Freeman and Johnson who entered the tavern with guns and relieved the proprietor of $2,614. No claim is made the defendant did not know Freeman and Johnson were armed and intended to hold up the tavern. Thus we are not concerned with whether the actions of the defendant may be sustained on the complicity theory or the conspiracy theory discussed in State v. Nutley (1964), 24 Wis. (2d) 527, 129 N. W. (2d) 155. Although he did not directly take the money from the owner by force with a dangerous weapon, there was no question the defendant was-“concerned in the commission of a crime” because he “intentionally aids and abets the commission of it.” Sec. 939.05.

The defendant contends the most he is guilty of is robbery, and in respect to armed robbery he played only a supporting and subsidiary role without a gun in that he aided and abetted as an accessory and should have been so charged. But one participating in an armed robbery although he personally has no gun is guilty of armed robbery on the same reasoning .one participating in a robbery is guilty of robbery although he personally does not put his hand in the victim’s pocket. The distinction between accessories and principals at common law and common-law crimes have been abolished in this state by sec. 939.10, Stats. 4 Wharton’s, Anderson, Criminal Law and Procedure (1957), pages 610-613, secs. 1789-1791. One who would have been an accessory or an accomplice or a particeps criminis before or after the fact at common law may now be directly charged with the commission of an offense as principal if he meets the “concerned in the commission of the crime” test of sec. 939.05 which provides in sub. (2) (b) one is concerned in the commission of a crime when he “intentionally aids and abets the commission of it.”

This rule has been well settled for many years in Wisconsin. In Fifer v. State (1926), 189 Wis. 50, 206 N. W. 861, the defendant was convicted of armed robbery. Fifer’s participation consisted of acting as a lookout at a nearby intersection while his two accomplices entered and robbed the store. Like a drama on the stage, each party was engaged in the general scheme of the crime by performing his allotted part in the plot; but unlike a drama, all the actors, those who played the principal roles and those in the supporting roles, were guilty under the law as principals. Similarly in State v. Kuick (1948), 252 Wis. 595, 32 N. W. (2d) 344, this court upheld a conviction of an eighteen-year-old girl for armed robbery who accompanied two men on foot and stood as a lookout across the street from a filling station while they held it up. The rule was applied in the crime of murder in State v. Henger (1936), 220 Wis. 410, 264 N. W. 922, where in the course of an armed robbery a filling-station attendant was killed. The charge of murder was sustained against the defendant although the evidence showed he entered a conspiracy to commit an armed robbery but not to fire the gun and to serve as the driver of the getaway car. Although the defendant stayed in the automobile, did not wield a revolver, or actively participate in the fight which resulted in the death, his guilt was no less in degree than he who shot the filling-station attendant. See also Ronzani v. State (1964), 24 Wis. (2d) 512, 129 N. W. (2d) 143; Pollack v. State (1934), 215 Wis. 200, 253 N. W. 560, 254 N. W. 471; In re Carlson (1922), 176 Wis. 538, 186 N. W. 722.

In jurisdictions where a distinction is made between the crime of robbery and of armed robbery as in Wisconsin, it is also the rule that an unarmed participant in a robbery by an armed associate is guilty of armed robbery. 46 Am. Jur., Robbery, p. 150, sec. 25; 77 C. J. S., Robbery, p. 470, sec. 32; People v. Silva (1956), 143 Cal. App. (2d) 162, 300 Pac. (2d) 25; Deemy v. District Court of Dallas County (1933), 215 Iowa 690, 246 N. W. 833. The facts of the latter case are almost identical with the case at bar.

For the plaintiff in error there was a brief on rehearing by Oliver S. Carter, pro se. No brief on rehearing for the defendant in error.

We find no error in convicting the defendant for armed robbery on his plea of guilty.

By the Court. — Judgment affirmed.