Home/Wisconsin Supreme Court/State v. Barclay

State v. Barclay

196 N.W.2d 745, 54 Wis. 2d 651, 1972 Wisc. LEXIS 1119
CourtWisconsin Supreme Court
DecidedMay 4, 1972
DocketState 206
StatusPublished
Cited by13 cases

This text of 196 N.W.2d 745 (State v. Barclay) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barclay, 196 N.W.2d 745, 54 Wis. 2d 651, 1972 Wisc. LEXIS 1119 (Wis. 1972).

Opinions

Robert W. Hansen, J.

One question only is asked by this appeal: Was the evidence sufficient to permit the jury to reasonably conclude beyond a reasonable doubt that the defendant’s unlawful entry was made with intent to steal? 1

Credible evidence, adduced by the state, which the jury was entitled to believe, established that the defendant was observed by a police officer — at 4:45 a. m. — walking to the rear of a tavern building at 4500 West North Avenue in the city of Milwaukee. The police officer testified he observed the defendant stop at a rear window of the tavern building — wrap a handkerchief around one hand — break the window with his handkerchief-wrapped hand — reach in with his arm to unlatch the window. The police officer testified he then shouted, “halt! police officer!” Whereupon, the officer testified, the defendant fled with the officer in pursuit. Two or three minutes [653]*653after the breaking of the window, the defendant was observed by a deputy sheriff. Seeing the defendant sneak across an alley near the tavern, the deputy shouted for him to stop and drew his gun. The deputy testified the defendant stopped, was handcuffed by a second deputy sheriff and was identified by the police officer as the person he had seen breaking into the tavern.

The defendant testified he was not the person who walked to the rear of the tavern, not the person who wrapped his hand with a handkerchief, not the person who broke the window and reached in to unlatch it, not the person who ran when ordered by the police officer to stop. It is clear that the jury did not believe the defendant’s testimony, and did believe the testimony offered by the state. The issue of comparative credibility was for the jury to determine. In any event, it is with the evidence in support of the jury verdict that we now deal.2

Arguing that such evidence does not establish an intent to steal, defendant’s counsel relies heavily on the Kennedy Case, where this court, by four to three vote, found intent to steal not established where there was an unlawful entry into a school at night.3 That decision has its critics,4 but, more to the point here, on its facts, [654]*654it has been reversed by this court,5 and, on the law, has been qualified to make clear that . . proof of circumstances which would lead the ordinary person to conclude beyond reasonable doubt that the entry was with the intent to steal is sufficient to sustain a finding of guilt.” 6

While it remains the law in this state that intent to steal will not be inferred from the fact of entry alone, it is also the law that . . additional circumstances such as time, nature of place entered, method of entry, identity of the accused and other circumstances, without proof of actual larceny, can be sufficient to permit a reasonable person to conclude the defendant entered with an intent to steal.” 7 In a recent case, involving a noontime entry into a residence, where intent to steal was found not to be inferrable,8 this court repeated the types of circumstances that were the basis of affirming convictions in Strait and Holmstrom, including type of entry, manner of entry, type of building entered, place of entry, time of entry, and defendant’s conduct when arrested or interrupted.9 A parallelism between such circumstances is clear as to Strait, Holmstrom and the case before us:

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Fox v. State
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Hadden v. State
57 Wis. 2d 756 (Wisconsin Supreme Court, 1973)
Raymond v. State
198 N.W.2d 351 (Wisconsin Supreme Court, 1972)
Johnson v. State
197 N.W.2d 760 (Wisconsin Supreme Court, 1972)
State v. Barclay
196 N.W.2d 745 (Wisconsin Supreme Court, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
196 N.W.2d 745, 54 Wis. 2d 651, 1972 Wisc. LEXIS 1119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barclay-wis-1972.