Wilkie, J.
Two issues are presented on this appeal:
First, was appellant denied his right to a speedy trial?
Second, did the trial court err in admitting testimony that materials in possession of a confederate, apprehended with appellant, came from the site of another alleged burglary which had occurred a week earlier ?
Speedy Trial.
Sec. 7, art. I of the Wisconsin constitution and the Sixth amendment of the United States constitution 1 guarantee an [353]*353accused the right to a speedy trial. Each case involving an alleged denial of this right turns on its own facts; 2 the facts in the instant case are these: Appellant and his coaccuseds were arrested on the evening of October 29, 1960. Two days later a complaint and warrant were issued and he was taken before a magistrate. Reynolds demanded a preliminary hearing which was set for November 7th. He subsequently waived the hearing. The information was filed December 15th and counsel was appointed at appellant’s request. On December 28th the case was remanded, upon counsel’s motion, to the court commissioner for a preliminary hearing. The preliminary was held March 1, 1961, and appellant was bound over for trial. Appellant pleaded not guilty at his April 19th arraignment and asked for a separate trial. This motion was granted and Kennedy alone was brought to trial April 26th. After the state had presented its case, the trial court directed a verdict of acquittal on two grounds: (1) Sec. 943.10 (1) (a), Stats., is not applicable to the entry of public buildings, and (2) the state had not introduced sufficient evidence to show that Kennedy had entered the school with intent to steal. On May 28th, appellant was imprisoned for a parole violation, and three days later the burglary charges against him and Strong were dismissed on the sole ground that the burglary statute did not apply to the entry of public buildings. The state appealed the Kennedy acquittal and the dismissals of the charges against Strong and Reynolds. Another attorney was appointed to represent appellant on the appeal. On February 6, 1962, this court affirmed the acquittal of Kennedy, but reversed the orders dismissing the charges against appellant and Strong.3 [354]*354The case was remanded to the Racine county court on April 2d.
Appellant was released from prison May 29th, but the Racine county district attorney was not informed of the release. Efforts to locate appellant were unsuccessful until May 24, 1964, when the district attorney was advised by Michigan authorities that he was being held in that state. Appellant waived extradition and was returned to Wisconsin. After a jury trial, which commenced October 27th, appellant was convicted of burglary. He was represented by counsel.
In contending that his right to a speedy trial was violated, appellant points to the four-year delay between his arrest and his trial. But the “[m]ere lapse of time does not, by itself, constitute denial” of this right when the accused “is tried as soon as the orderly operation of the court permits.” 4 Furthermore, an accused is required to take affirmative action to bring the case on for trial as a condition precedent to demanding the dismissal of the pending charges.5 At no time did appellant request a speedy disposition of his case. The state’s initial attempt to bring the case to trial was thwarted when appellant, at his own insistence, was granted a separate trial because his defense was antagonistic to that of Kennedy, his accomplice. Then the state had to appeal the dismissal of the charges against appellant which also came about as a result of his own motion. By the time the appeal had been decided, the case remanded, and the charge reinstated, a year and a half of the four-year period had elapsed. Shortly after the Racine county authorities learned [355]*355of the results of the appeal, appellant was released from prison and absented himself from the state for nearly two years before being apprehended. Counsel was appointed for appellant after his return to Wisconsin, and after a motion to dismiss for lack of a speedy trial, he was tried and convicted. Thus, although a four-year interval might, at first blush, appear to be inordinate and unreasonable, an examination of the facts discloses that it was caused by appellant’s own motions, the orderly conduct of the business of the court, and his own flight from the state.
Appellant contends, however, that his leaving the state cannot be held against him in resolving the speedy trial issue since he gained his release from prison by virtue of the district attorney’s failure to file a detainer warrant with the prison authorities. This fact is of no import for two reasons. First, appellant cannot rely on any lapse on the state’s part when he fled the state instead of taking “affirmative action” 6 in seeking disposition of his case. Appellant contends that he did not realize he had lost his appeal, but it is undisputed that he received a notice of appeal and although the record does not affirmatively disclose the fact, it is reasonable to assume that his attorney acted conscientiously and apprised him of the outcome. Second, only the time spent in custody, in one form or another, is considered when resolving the speedy trial question. Appellant cannot complain that he was not tried with sufficient haste when his own conduct prevented the judicial wheels from turning. If this were otherwise, a suspect who remained at large for a lengthy period, despite an outstanding warrant for his arrest, could point to the time lapse between the issuance of the warrant and his apprehension.
[356]*356
Evidence of Other Burglary.
Although Kennedy was found to have entered the school, he was acquitted because the proof was held insufficient to prove beyond a reasonable doubt that he entered the building with the intent to steal.
In the trial of appellant much of the evidence was the same as in the Kennedy case. Thus it was established that one door of the school had apparently been jimmied; that all of the doors were locked but could be opened from the inside; that appellant, Kennedy, and Strong came “charging out of the front entranceway;” that Strong was carrying a canvas bag containing a “hammer, maul, two drive pins, and a chisel;” that all three wore gloves even though the weather was mild; and that two crowbars, which did not belong to the school, were found in the school.
At the Reynolds trial additional evidence was introduced to show appellant’s intent to steal. The tools in the canvas bag were specifically identified as burglarious tools; there was testimony that one of the crowbars had made the marks on the door; evidence that there was a good deal of money in the superintendent’s office on the night of the break-in was introduced.
For the limited purpose of showing Reynolds’ intent to steal, the state offered evidence of a burglary at a Two Rivers school that had occurred just a week before the Burlington break-in. Witnesses testified that a Two Rivers school.had been entered and a hole knocked in a wall in order to gain access to a vault. Over $200 had been taken. Bits of tile and plaster found in the canvas bag at Burlington were sent to the FBI laboratory for comparison with samples of tile and plaster taken from the wall of the Two Rivers school.
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Wilkie, J.
Two issues are presented on this appeal:
First, was appellant denied his right to a speedy trial?
Second, did the trial court err in admitting testimony that materials in possession of a confederate, apprehended with appellant, came from the site of another alleged burglary which had occurred a week earlier ?
Speedy Trial.
Sec. 7, art. I of the Wisconsin constitution and the Sixth amendment of the United States constitution 1 guarantee an [353]*353accused the right to a speedy trial. Each case involving an alleged denial of this right turns on its own facts; 2 the facts in the instant case are these: Appellant and his coaccuseds were arrested on the evening of October 29, 1960. Two days later a complaint and warrant were issued and he was taken before a magistrate. Reynolds demanded a preliminary hearing which was set for November 7th. He subsequently waived the hearing. The information was filed December 15th and counsel was appointed at appellant’s request. On December 28th the case was remanded, upon counsel’s motion, to the court commissioner for a preliminary hearing. The preliminary was held March 1, 1961, and appellant was bound over for trial. Appellant pleaded not guilty at his April 19th arraignment and asked for a separate trial. This motion was granted and Kennedy alone was brought to trial April 26th. After the state had presented its case, the trial court directed a verdict of acquittal on two grounds: (1) Sec. 943.10 (1) (a), Stats., is not applicable to the entry of public buildings, and (2) the state had not introduced sufficient evidence to show that Kennedy had entered the school with intent to steal. On May 28th, appellant was imprisoned for a parole violation, and three days later the burglary charges against him and Strong were dismissed on the sole ground that the burglary statute did not apply to the entry of public buildings. The state appealed the Kennedy acquittal and the dismissals of the charges against Strong and Reynolds. Another attorney was appointed to represent appellant on the appeal. On February 6, 1962, this court affirmed the acquittal of Kennedy, but reversed the orders dismissing the charges against appellant and Strong.3 [354]*354The case was remanded to the Racine county court on April 2d.
Appellant was released from prison May 29th, but the Racine county district attorney was not informed of the release. Efforts to locate appellant were unsuccessful until May 24, 1964, when the district attorney was advised by Michigan authorities that he was being held in that state. Appellant waived extradition and was returned to Wisconsin. After a jury trial, which commenced October 27th, appellant was convicted of burglary. He was represented by counsel.
In contending that his right to a speedy trial was violated, appellant points to the four-year delay between his arrest and his trial. But the “[m]ere lapse of time does not, by itself, constitute denial” of this right when the accused “is tried as soon as the orderly operation of the court permits.” 4 Furthermore, an accused is required to take affirmative action to bring the case on for trial as a condition precedent to demanding the dismissal of the pending charges.5 At no time did appellant request a speedy disposition of his case. The state’s initial attempt to bring the case to trial was thwarted when appellant, at his own insistence, was granted a separate trial because his defense was antagonistic to that of Kennedy, his accomplice. Then the state had to appeal the dismissal of the charges against appellant which also came about as a result of his own motion. By the time the appeal had been decided, the case remanded, and the charge reinstated, a year and a half of the four-year period had elapsed. Shortly after the Racine county authorities learned [355]*355of the results of the appeal, appellant was released from prison and absented himself from the state for nearly two years before being apprehended. Counsel was appointed for appellant after his return to Wisconsin, and after a motion to dismiss for lack of a speedy trial, he was tried and convicted. Thus, although a four-year interval might, at first blush, appear to be inordinate and unreasonable, an examination of the facts discloses that it was caused by appellant’s own motions, the orderly conduct of the business of the court, and his own flight from the state.
Appellant contends, however, that his leaving the state cannot be held against him in resolving the speedy trial issue since he gained his release from prison by virtue of the district attorney’s failure to file a detainer warrant with the prison authorities. This fact is of no import for two reasons. First, appellant cannot rely on any lapse on the state’s part when he fled the state instead of taking “affirmative action” 6 in seeking disposition of his case. Appellant contends that he did not realize he had lost his appeal, but it is undisputed that he received a notice of appeal and although the record does not affirmatively disclose the fact, it is reasonable to assume that his attorney acted conscientiously and apprised him of the outcome. Second, only the time spent in custody, in one form or another, is considered when resolving the speedy trial question. Appellant cannot complain that he was not tried with sufficient haste when his own conduct prevented the judicial wheels from turning. If this were otherwise, a suspect who remained at large for a lengthy period, despite an outstanding warrant for his arrest, could point to the time lapse between the issuance of the warrant and his apprehension.
[356]*356
Evidence of Other Burglary.
Although Kennedy was found to have entered the school, he was acquitted because the proof was held insufficient to prove beyond a reasonable doubt that he entered the building with the intent to steal.
In the trial of appellant much of the evidence was the same as in the Kennedy case. Thus it was established that one door of the school had apparently been jimmied; that all of the doors were locked but could be opened from the inside; that appellant, Kennedy, and Strong came “charging out of the front entranceway;” that Strong was carrying a canvas bag containing a “hammer, maul, two drive pins, and a chisel;” that all three wore gloves even though the weather was mild; and that two crowbars, which did not belong to the school, were found in the school.
At the Reynolds trial additional evidence was introduced to show appellant’s intent to steal. The tools in the canvas bag were specifically identified as burglarious tools; there was testimony that one of the crowbars had made the marks on the door; evidence that there was a good deal of money in the superintendent’s office on the night of the break-in was introduced.
For the limited purpose of showing Reynolds’ intent to steal, the state offered evidence of a burglary at a Two Rivers school that had occurred just a week before the Burlington break-in. Witnesses testified that a Two Rivers school.had been entered and a hole knocked in a wall in order to gain access to a vault. Over $200 had been taken. Bits of tile and plaster found in the canvas bag at Burlington were sent to the FBI laboratory for comparison with samples of tile and plaster taken from the wall of the Two Rivers school. Over appellant’s objection, testimony by two FBI agents employed at the laboratory that the fragments in the [357]*357bag matched the fragments from the Two Rivers school was admitted.
Evidence may be admitted “of other occurrences in which a defendant has participated, when such others are similar in facts and close to the time of the offenses for which a defendant is on trial.” 7 This evidence is admissible not to prove the defendant guilty of the crime charged but rather to show some element of that offense.8 However, it must be shown that the accused had some connection with the other offense.9 Appellant contends that the admission of this testimony was erroneous because Strong, not he, was carrying the bag and also because the state did not specifically link him with the Two Rivers burglary. The state counters that the possession of the bag by appellant and his cohorts at the time of their arrest — regardless of who was physically toting it — constitutes sufficient nexus to the Two Rivers crime to render the evidence admissible.
In State v. Lombardi,10 evidence of events in which Lombardi participated at a house of ill-fame was held admissible on a charge against him for knowingly failing to enforce the laws relating to prostitution against the house. In Herde v. State,11 admission of evidence was allowed that the defendant had recently committed a robbery under circumstances [358]*358like the one for which he was on trial. In Kluck v. State,12 evidence connecting a defendant with the transportation of illicit alcohol a month or so preceding the seizure of a still was held competent as tending to prove that the manufacture and traffic in illicit liquor was a continuing offense and proof of these acts tends to prove a specific element of the crime charged. In State v. Meating,13 involving a prosecution for concealing stolen automobiles, evidence showing concealment of other stolen automobiles was held to be properly received as tending to establish some ingredient of the offense charged. In Smith v. State,14 where the defendant was also charged with burglary, testimony of other offenses was held admissible to show the element of intent. Finally, in Diets v. State,15 in a prosecution for murder committed by the defendant when he shot a law-enforcement officer who with other officers had surrounded the home and laid seige to it, the state was permitted to introduce evidence that the defendant frequently and uniformly during the preceding years had made armed resistance to arrest and threatened to shoot the officers on sight.
In each of these cases the evidence showed that the accused had actually been involved in the other crimes, offenses, or occurrences. Here, there was no evidence that Reynolds actually was involved in the Two Rivers break-in.
The state relies on Neubrandt v. State 16 to support its contention that this evidence was properly received even though there was no direct evidence that Reynolds was involved in the Two Rivers episode. In Neubrandt a building was entered and items belonging to the owner and a boarder were taken. The defendant had possession of all the stolen [359]*359goods when arrested, and evidence that he was found with the boarder’s property was deemed properly admissible at his trial for stealing the owner’s. The instant case presents a quite different situation on the facts. Although it was not proved that Neubrandt had stolen the boarder’s property, he was implicated because all of the goods were found in his possession. None of the tools or fragments associated with the Two Rivers burglary were found in Reynolds’ possession. The state argues, however, that since the bag was carried by one of the three men when they were seized, under the circumstances possession by one is tantamount to possession by each. The danger inherent in such a theory is that this still does not tie appellant up with the Two Rivers burglary. It is reasonably conceivable that appellant joined up with Kennedy and/or Strong only subsequent to the assault on the Two Rivers school. Every doubt must be resolved in favor of the defendant.
Having failed to establish either that the bag belonged to or was in the possession of Reynolds or that he actually played a role in the Two Rivers affair, the state has not shown a sufficient connection with the other break-in. Consequently it was error to have admitted this evidence even for the limited purpose for which it was offered.
The evidence thus received in error was undoubtedly prejudicial to defendant and the judgment of conviction must be set aside and the cause must be remanded for a new trial.
We are asked by the attorney general to reconsider what was said by this court in Kennedy, wherein the majority of the court upheld the judgment of acquittal involving Reynolds’ confederate, Kennedy, stating:
“. . . the inference of intent to steal could not properly be drawn from the evidence with sufficient certainty to overcome the presumption of innocence and to meet the standard of proof beyond a reasonable doubt.” 17
[360]*360Specifically, the attorney general urges that an inference or presumption of intent to steal “arises upon proof of the breaking and entering of a building or attempt to do so, without consent in the nighttime,” which inference or presumption “is a sufficient basis for submitting the case to the jury and for a finding by it of the element of an intent to steal in the absence of explanation by the accused.”
Under sec. 943.10, Stats., one found guilty of burglary may be sentenced to as much as ten years in prison. The statute specifically requires that the entry be “with intent to steal or commit a felony.” Thus, it not only covers an entry made “with intent to steal” but others made with intent to commit arson, a sex offense, or any other crime classified as a felony. It is conceded that it is difficult in many cases to prove the requisite intent. What the state is asking here is that, on a showing of breaking and entering a building, or an attempt to do so, without consent in the nighttime, there “arises” with nothing more, an inference that the defendant is there with intent to steal. The breaking or entering may have been with an intent to commit a felony entirely different from stealing, yet the state would infer an intent to steal. The entry may have been made with the purpose of committing a misdemeanor or for an entirely innocent purpose. We do not think it unreasonable for the legislature to require proof of “intent to steal or commit a felony” in order to gain a conviction for burglary with the attending maximum ten-year imprisonment. It should be noted that sec. 943.14, Stats., makes it a separate crime punishable by a fine of not more than $200 or imprisonment of not more than six months or both where one “intentionally enters the dwelling of another without the consent.”
It is entirely reasonable to require the prosecution to establish each element of the crime by proving each element in accordance with the prevailing standard of proof beyond a [361]*361reasonable doubt. The change in the Kennedy rule advocated by the state would really do more than raise an inference that the defendant had entered the building with “intent to steal it would constitute a rebuttable presumption which would effectively destroy the normal presumption of innocence. After considering all of the arguments both pro and con as applied to the facts of this case, we see no reason for adopting the rule change suggested by the attorney general or in making any modification in the holding in Kennedy.
By the Court. — Judgment reversed, and cause remanded for a new trial in accordance with this opinion.
Fairchild, J., dissents, being of the opinion the judgment should be affirmed.