Wilkie, J.
The most-important question raised by this appeal is whether or not the defendant would be subjected [458]*458to double jeopardy by a review of the lower court’s decision in this case. Sec. 8, art. I of the Wisconsin constitution provides: “. . . ho person for the same offense shall be put twice in jeopardy of punishment.” The constitutional guaranty protecting a person from double jeopardy is one of the most-fundamental rights in our society. This court will do all in its power to uphold that guaranty. However, the constitutional guaranty against double jeopardy does not mean that in every situation the supreme court of this state is precluded from reviewing errors of law committed by the lower court wherein a defendant is acquitted of a criminal charge. Our state has long had a specific statute where, with discretionary leave by the trial court, the state, under prescribed circumstances, may timely appeal from a judgment of acquittal. The statute, sec. 958.12 (1) (d), provides for appeal by the state in the following situation among others:
“Judgment adverse to the state, upon questions of . law arising upon the trial, with the permission of the trial judge, in the same manner and with the same effect as if taken by the defendant. A judgment acquitting the defendant of all or part of the charge shall be deemed adverse to the state.”
The instant case involves an interpretation of this statute in the light of the constitutional guaranty against double jeopardy.
The leading Wisconsin cases, discussing the right of the supreme court to review errors of law committed by trial court, are: State v. Kennedy (1962), 15 Wis. (2d) 600, 113 N. W. (2d) 372, and State v. Evjue (1949), 254 Wis. 581, 37 N. W. (2d) 50. In the Kennedy Case, supra, this court held the state has the right to appeal from a judgment rendered by a trial court if, during the course of the trial, there were errors of law committed by the trial court. The error of law appealed from was a directed ver-[459]*459diet of acquittal rendered by the trial court where the trial court determined that sec. 943.10 (1), Stats. 1959, is not applicable to the entry of a public building {i.e., school building) and that the state had failed to introduce sufficient evidence that Kennedy had entered the building with intent to steal. In this court’s ruling, concluding that this error was reviewable, the court stated, at page 609:
“We find no infirmity in the theory that where the continuity of the proceedings is preserved by timely motions and appeals, subjecting the defendant to a second trial by reason of errors in the first trial is not placing him in new and second jeopardy nor in the reasoning that the ruling of a court upon the sufficiency of evidence to go to the jury or sustain a verdict is a ruling upon a question of law reviewable upon the state’s appeal from a judgment of acquittal, with the permission of the trial judge.”
. In the Evjue Case, supra, we held that the state is precluded from a review where there are no claimed errors of law committed during the course of the trial and where the error sought to be reviewed was the lower court’s ultimate determination, as the trier of fact, of simply “not guilty.” In the instant case the trial court, in rendering his ultimate decision of “not guilty,” stated the reasons for his decision.
The court declared:
“2. The final issue for determination is one within the province of the court, whether the evidence as presented is sufficient to find the defendant guilty, beyond all reasonable doubt, in manner and form as stated, of violating 66.054 (8a) (c) of the state statutes.
“Certain facts have suggested themselves from the evidence, some few others are obscure.
“I understand that business credit of goods sold requires more attention than simply the issuance of a check if any control is to be exercised over the sale by the retailer and a profit realized; surely he must check the delivery or have it checked, stored, or inventoried, survey future needs [460]*460while this operation is going on. Therefore, the court was very interested in all the facts which testimony developed.
“(1) Abraham Gecht is holder of a Class ‘A’ retailer’s license, operating under the name of ‘White Manor Liquor Store,’ at 5031 West Oklahoma Avenue, and that if I understand correctly, there are two such stores operated by the defendant, that investigators have observed three persons with duties- about the licensed premises besides himself and refer to a fourth, a bookkeeper,
“(2) It is obvious that the defendant’s mode of purchase was credit and of payment by check, tendered to salesmen of the wholesaler who frequented the establishment for orders. It is further obvious that the making out of the check immediately was an expedient to secure each transaction before the invoices were disarranged or - mislaid through handling by other employees (bookkeeper, stock boy, etc.).
“(3) It is further obvious that this practice of doing business was known to the Department of Taxation and was not challenged until after the warrant was issued, as far as the defendant’s knowledge of their attitude was concerned anyway.
“(4) There is evidence to show an earlier investigator, Mr. Richter, had informed the defendant’s son, David, and Harold Anderson, manager of the two stores, that the method used was not in compliance with the beer-credit law, but no one that we have heard of told the defendant until after the warrant was issued.
“(5) The records alluded to, but not submitted into evidence, suggests, we understand, that other transactions were made between parties to the instant transactions, but there were no indications of payment or nonpayment on such invoice, and admittedly some of these were paid.
“(6) There apparently was a continuing account on the part of the defendant with certain wholesalers, and therefore some confusion might be expected, and especially if the checks of the defendant would have to pass through many hands before being duly credited.
“(7) Finally, some aspects of a technical violation are admitted by the defense, but such admissions, except that they indicated a clear intent on the part of the defendant, do [461]*461not impose in favor of a finding of guilty. The only true bases on which the court could conclude evidence beyond a reasonable doubt are two: (1) If the court should find that the defendant conspired to violate the law, and (2) if the court should find as principal he was responsible for the acts or omissions of his agents properly qualified to transmit information to him regarding certain demands of the department and to see that such requirements were carried out. No evidence appears of record that any writing or other order from the department to the defendant, calculated to give him actual notice of improper record keeping, was shown.
“Therefore, it is the judgment of this court that the state has not sustained the burden of proof and the court therefore finds the defendant not guilty in manner and form as charged in the complaint, and the case is ordered dismissed.”
Free access — add to your briefcase to read the full text and ask questions with AI
Wilkie, J.
The most-important question raised by this appeal is whether or not the defendant would be subjected [458]*458to double jeopardy by a review of the lower court’s decision in this case. Sec. 8, art. I of the Wisconsin constitution provides: “. . . ho person for the same offense shall be put twice in jeopardy of punishment.” The constitutional guaranty protecting a person from double jeopardy is one of the most-fundamental rights in our society. This court will do all in its power to uphold that guaranty. However, the constitutional guaranty against double jeopardy does not mean that in every situation the supreme court of this state is precluded from reviewing errors of law committed by the lower court wherein a defendant is acquitted of a criminal charge. Our state has long had a specific statute where, with discretionary leave by the trial court, the state, under prescribed circumstances, may timely appeal from a judgment of acquittal. The statute, sec. 958.12 (1) (d), provides for appeal by the state in the following situation among others:
“Judgment adverse to the state, upon questions of . law arising upon the trial, with the permission of the trial judge, in the same manner and with the same effect as if taken by the defendant. A judgment acquitting the defendant of all or part of the charge shall be deemed adverse to the state.”
The instant case involves an interpretation of this statute in the light of the constitutional guaranty against double jeopardy.
The leading Wisconsin cases, discussing the right of the supreme court to review errors of law committed by trial court, are: State v. Kennedy (1962), 15 Wis. (2d) 600, 113 N. W. (2d) 372, and State v. Evjue (1949), 254 Wis. 581, 37 N. W. (2d) 50. In the Kennedy Case, supra, this court held the state has the right to appeal from a judgment rendered by a trial court if, during the course of the trial, there were errors of law committed by the trial court. The error of law appealed from was a directed ver-[459]*459diet of acquittal rendered by the trial court where the trial court determined that sec. 943.10 (1), Stats. 1959, is not applicable to the entry of a public building {i.e., school building) and that the state had failed to introduce sufficient evidence that Kennedy had entered the building with intent to steal. In this court’s ruling, concluding that this error was reviewable, the court stated, at page 609:
“We find no infirmity in the theory that where the continuity of the proceedings is preserved by timely motions and appeals, subjecting the defendant to a second trial by reason of errors in the first trial is not placing him in new and second jeopardy nor in the reasoning that the ruling of a court upon the sufficiency of evidence to go to the jury or sustain a verdict is a ruling upon a question of law reviewable upon the state’s appeal from a judgment of acquittal, with the permission of the trial judge.”
. In the Evjue Case, supra, we held that the state is precluded from a review where there are no claimed errors of law committed during the course of the trial and where the error sought to be reviewed was the lower court’s ultimate determination, as the trier of fact, of simply “not guilty.” In the instant case the trial court, in rendering his ultimate decision of “not guilty,” stated the reasons for his decision.
The court declared:
“2. The final issue for determination is one within the province of the court, whether the evidence as presented is sufficient to find the defendant guilty, beyond all reasonable doubt, in manner and form as stated, of violating 66.054 (8a) (c) of the state statutes.
“Certain facts have suggested themselves from the evidence, some few others are obscure.
“I understand that business credit of goods sold requires more attention than simply the issuance of a check if any control is to be exercised over the sale by the retailer and a profit realized; surely he must check the delivery or have it checked, stored, or inventoried, survey future needs [460]*460while this operation is going on. Therefore, the court was very interested in all the facts which testimony developed.
“(1) Abraham Gecht is holder of a Class ‘A’ retailer’s license, operating under the name of ‘White Manor Liquor Store,’ at 5031 West Oklahoma Avenue, and that if I understand correctly, there are two such stores operated by the defendant, that investigators have observed three persons with duties- about the licensed premises besides himself and refer to a fourth, a bookkeeper,
“(2) It is obvious that the defendant’s mode of purchase was credit and of payment by check, tendered to salesmen of the wholesaler who frequented the establishment for orders. It is further obvious that the making out of the check immediately was an expedient to secure each transaction before the invoices were disarranged or - mislaid through handling by other employees (bookkeeper, stock boy, etc.).
“(3) It is further obvious that this practice of doing business was known to the Department of Taxation and was not challenged until after the warrant was issued, as far as the defendant’s knowledge of their attitude was concerned anyway.
“(4) There is evidence to show an earlier investigator, Mr. Richter, had informed the defendant’s son, David, and Harold Anderson, manager of the two stores, that the method used was not in compliance with the beer-credit law, but no one that we have heard of told the defendant until after the warrant was issued.
“(5) The records alluded to, but not submitted into evidence, suggests, we understand, that other transactions were made between parties to the instant transactions, but there were no indications of payment or nonpayment on such invoice, and admittedly some of these were paid.
“(6) There apparently was a continuing account on the part of the defendant with certain wholesalers, and therefore some confusion might be expected, and especially if the checks of the defendant would have to pass through many hands before being duly credited.
“(7) Finally, some aspects of a technical violation are admitted by the defense, but such admissions, except that they indicated a clear intent on the part of the defendant, do [461]*461not impose in favor of a finding of guilty. The only true bases on which the court could conclude evidence beyond a reasonable doubt are two: (1) If the court should find that the defendant conspired to violate the law, and (2) if the court should find as principal he was responsible for the acts or omissions of his agents properly qualified to transmit information to him regarding certain demands of the department and to see that such requirements were carried out. No evidence appears of record that any writing or other order from the department to the defendant, calculated to give him actual notice of improper record keeping, was shown.
“Therefore, it is the judgment of this court that the state has not sustained the burden of proof and the court therefore finds the defendant not guilty in manner and form as charged in the complaint, and the case is ordered dismissed.”
The precise decision of the court is quoted at length principally to show that the trial court was ruling in his capacity as trier of fact and also as trial judge. The state contends that the trial court committed errors of law in determining that the state had to prove (1) actual intent by the defendant to violate the law, and (2) knowledge by the defendant that his bookkeeping methods were faulty. The trial judge assumed the beer-credit law to be constitutional.
Where the trial court expressly disposes of the whole case and enters judgment of acquittal on a pure determination that the statute or administrative rule under which a defendant is charged is unconstitutional, as in State v. Herwig, ante, p. 442, 117 N. W. (2d) 335, the alleged error is on a question of law committed upon the trial which error may be raised by the state on an appeal taken under see. 958.12 (1) (d), Stats. 1959, where prior permission for such appeal is granted by the trial judge.
Where the trial court acts both as jury and trial judge, and he makes an ultimate determination of not guilty and where it is clear that he is speaking as trier of fact, it clearly [462]*462would be double jeopardy to permit an appeal under sec. 958.12 (1) (d), Stats. 1959. Evjue Case, supra.
Where the trial court makes an ultimate determination of not guilty and where, as here, there is no; claim of procedural error against the state during the course of trial but where, as here, the trial court in making his ultimate determination does so principally in his capacity as the trier of fact, then any errors on questions of law announced by the court that may have been a basis for his decision are not reviewable. In appraising the lower court’s determination, any doubts as to whether the trial court is acting in the capacity of trier of fact are to be resolved in favor of the defendant. Only in this way will he be assured the protection that the constitutional guaranty against double jeopardy provides.
In the instant case the trial court was ruling principally in his capacity as trier of fact and since for that reason his determination is not reviewable here we are not required to pass on the two additional elements that the state contends the trial court erroneously required the state to prove to win a conviction. Neither do we pass on the constitutionality of the beer-credit statute.
We appreciate that this conclusion not only prevents an appeal to this court from an arbitrary finding of not guilty by trial judges in the face of the facts and the law, see Evjue Case, supra, but also prevents an appeal where the trial judge, in making what must be construed as his final findings of fact, then acts partly on the basis of what may later be determined as errors of law. We are satisfied that instances of this sort will be rare and that trial judges, in the exercise of their office, will protect the state’s desire for a fair and complete first trial of the defendant.
By the Court, — Appeal dismissed.