State v. Shoffner

143 N.W.2d 458, 31 Wis. 2d 412, 1966 Wisc. LEXIS 994

• Court: Wisconsin Supreme Court
• Decided: July 1, 1966
• Status: Published

Opinions

Fairchild, J.

1. The defense of insanity. In instructing the jury, the learned circuit judge faithfully followed our decision in State v. Esser ¹ and defined the defense of insanity in terms of capacity to understand the nature and quality of the act and capacity to distinguish between right and wrong with respect to it.

The defense had requested, in preferential order, four alternative instructions. The elements involved in each were as follows:

The first: Lack of substantial capacity to appreciate criminality of conduct or lack of substantial capacity to conform conduct to the requirements of law.²

The second: Lack of substantial capacity to conform conduct to the requirements of law.³

The third: Whether the accused was suffering from disease of the mind to such a degree that he ought not to be held responsible.⁴

The fourth: Whether the act is the product of mental disease.⁵

As appears in the statement of facts, there was expert testimony tending to establish elements of the defense which are not included in the Esser definition, i.e., lack of substantial capacity to conform conduct, and the offense a product of the mental illness. Thus we are again presented with the problem we resolved by bare majority vote four years ago in Esser.

As noted in Esser, the question faced by society when a mentally ill person engaged in offensive conduct made punishable by law is:

“. . . whether at the time of engaging in the offensive conduct the accused was dominated or affected by the mental illness to so substantial a degree that society cannot, in good conscience, hold him responsible for the conduct as a crime, i.e., punish him.” ⁶

Conceivably the jury could be. instructed that the plea of insanity raised that question and the jury must answer it, thus permitting the jury to function as the conscience of the community as well as fact finder.⁷

For various reasons, which we attempted to point out in Esser, no solution is perfect, and each alternative can be legitimately subjected to some criticism. The majority, in Esser, chose the definition involving capacity to understand the nature and quality of the act and capacity to distinguish between right and wrong, pointing out that under the Wisconsin rule on burden of proof, a-defendant succeeds if he is able to raise a reasonable doubt concerning his capacity to do so.

We also pointed to a lack of evidence that the previously existing right-wrong test, coupled with placing the burden of proof upon the state, had resulted in injustice. We suggested that significance might be found in a study of cases where an attempted insanity defense had been unsuccessful, but the prisoner had later been found in need of treatment for mental illness.

In the four years which have elapsed since Esser, no case has come before us in which the record indicated to us that a mentally ill person had been found guilty in violation of good conscience. We have received no information of any other sort tending to demonstrate the likelihood of such result under the Esser definition. Judges who preside over criminal trials would be the group most cognizant of instances, if any, where persons whose conduct had been substantially affected by mental illness have been convicted. We are not aware of any indication by Wisconsin trial judges that there have been such instances. There has been no change in the statute which imposes the burden of proof upon the state on this issue.⁸

We are aware that there has been activity in several other jurisdictions concerning the definition of the defense of insanity. The legislatures in Maine, Illinois, and New York have adopted new definitions. In 1961 Maine adopted the following definition:

“An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. The terms ‘mental disease’ or ‘mental defect’ do not include an abnormality manifested only by repeated criminal conduct or excessive use of drugs or alcohol.” ⁹ This definition follows Durham.

In the same year, 1961, Illinois adopted the following definition:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

“(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” ¹⁰ This definition follows the American Law Institute.

A New York study commission proposed this definition:

“ ‘1. A person is not criminally responsible for conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity:

“ ‘(a) To know or to appreciate the wrongfulness of his conduct; or

“ ‘ (b) To conform his conduct to the requirements of law.

“ ‘2. As used in this section, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.’ ” ¹¹

Despite the recommendation of the study commission, which followed the American Law Institute, the New York legislature, in 1965, adopted the following definition:

“1. A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to know or appreciate either:

“(a) The nature and consequence of such conduct; or

“(b) That such conduct was wrong.” ¹²

This definition is somewhat modified from M’Naghten.

A California special study commission has proposed a modification of the American Law Institute definition. The legislature has- not acted on the proposal. The California supreme court considers the M’Naghten definition “an integral part of the legislative scheme for the appraisal of criminal responsibility” and that any change should be made by the legislature.¹³

Three federal circuit courts have adopted new definitions of the defense of insanity.¹⁴

The Michigan supreme court recently indicated that, if properly presented, it would consider the Durham definition,¹⁵ and an Ohio court expressed dissatisfaction with the M’Naghten definition presently being used in Ohio.¹⁶

Other courts have adhered to the M’Naghten definition. ¹⁷

One of onr assumptions in Esser was that:

“. . . in any case where a defendant is able to convince a jury that his mental illness totally or substantially deprives him of power to control his conduct, it seems very probable that such showing will generate in the minds of the jurors a reasonable doubt of his capacity to understand the nature and quality of his acts or to distinguish right from wrong.” ¹⁸

Such an assumption would be seriously challenged by a record which contained convincing evidence that mental illness did deprive a defendant of substantial capacity to conform his conduct to the requirements of law and yet a jury convicted.

Although there was, indeed, defense testimony that Shoffner was unable to conform his conduct, the record, for reasons which will appear, is not thoroughly convincing on this point.

The defense experts were both employed by the Milwaukee County Mental Health Center, North Division. Dr. Liccione is chief psychologist and Dr. Crowley, a psychiatrist, is clinical director. Both held the opinion that Shoffner is mentally ill, with a type of schizophrenia. Dr. Crowley summarized schizophrenia as “a psychosis characterized by disturbances of affect, perception, association, a predilection for fantasies over reality and consequent inability to adequately test reality. That’s all that comes to mind at the moment. It’s a very complex thing.” He described “affect” as “an emotional response to an idea or situation.” The affectual disturbances characterizing the schizophrenic are: “In general inappropriateness of affect, which is an emotional response to a situation or an idea or thought which is not in keeping with that thought such as laughing at a funeral. . . An extension of this disturbance in affect would be a complete absence of it in which the absence of it would be inappropriate. That is what was previously referred to as flatness of affect.”

Dr. Crowley testified to further opinions (the interrelation of which we as laymen may not fully understand, but which the record gives us no reason to discredit) that Shoffner’s antisocial acts were the products of his illness; he would not have committed them but for his mental illness; he had a good fundamental understanding of right and wrong and was aware that it was wrong for him to commit the acts; he lacked substantial capacity to conform his conduct to the requirements of the laws- he was alleged to have violated; he did not have real insight into his conduct, and lack of insight interfered with his moral judgment.

Two psychiatrists, Dr. Tabachnick and Dr. Studley, were appointed by the judge and were examined at the trial pursuant to sec. 957.27, Stats. They testified, concerning Shoffner, only in terms of the Esser test. Each stated, in response to questions by the court, opinions that Shoffner was “sane,” that he had sufficient mental capacity to understand- the nature and quality of his acts, and to distinguish between right and wrong with respect to such acts. Neither court nor counsel asked their opinions whether Shoffner was suffering from a mental disorder, as to the characteristics and symptoms of such disorder, if any, nor concerning the way and degree in which the malady, if any, affected Shoffner’s behavior.¹⁹

Thus this record is not a convincing demonstration that the Esser definition fails, for it leaves open the distinct possibility of a conflict between the doctors with respect to Shoffner’s mental illness and its effect on his conduct.

Speaking now, for -a majority of the court, consisting of Mr. Justice Gordon, Mr. Justice Beilfuss, Mr. Justice Heffernan, and the writer of this opinion, we have not been convinced that the Esser definition, coupled with the rule imposing upon the state the burden of proof beyond a reasonable doubt, is producing unjust results, and we are not convinced that the Esser definition should be changed. Mr. Chief Justice CURRIE, Mr. Justice Hallows, and Mr. Justice Wilkie would overrule Esser and adopt the American Law Institute definítion notwithstanding the present statutory rule on burden of proof.

At this point) the writer of this opinion finds himself in an unusual situation. Agreeing, as he does, with three of his brethren that the Esser definition coupled with the burden of proof on the state is all that a defendant can demand as a matter of right, and disagreeing, as he does, with the other three, who support the present adoption of the American Law Institute definition as a matter of right, he concludes that it would be appropriate, at least as an experiment in this perplexing field, to extend to a defendant, under certain conditions, an option to assume the burden of proof on the insanity issue, and to be tried under a more liberal definition, and to order a new trial in the instant case. The other three justices support this view provided that the option is restricted to the American Law Institute definition^

Accordingly, the remainder of part 1 of this opinion is adhered to by Mr. Chief Justice Currie, Mr. Justice Hallows, Mr. Justice Wilkie, and the writer.

We consider it unfortunate, in the trial of the instant case, that the court-appointed experts testified only in the strict terms of the Esser test. If, by responding that Shoffner is “sane,” they meant that, to a medical certainty he was not suffering from the type of schizophrenia diagnosed by the defense experts, this is not clear from the record. We consider it particularly unfortunate that the court-appointed psychiatrists were asked to state whether Shoffner was “sane,” since that term comprises all of this most perplexing legal issue, and the standing of these witnesses as court-appointed experts, examined, indeed, by the court may well have strongly impressed the jurors, and distracted them from full consideration to the disturbances described by Dr. Crowley which might have raised a reasonable doubt of Shoffner’s sanity.

Had the court-appointed experts stated opinions in the same frame of reference as the defense experts, the record would surely have been more instructive to the jury, and to us, upon review. The doubts we have on this point would be insufficient, however, as a basis for ordering a new trial in the interests of justice.

We consider a new trial appropriate here, however, in order to give defendant Shoffner the benefit of the option hereinafter described, although he has been unsuccessful in persuading a majority of the court that he is entitled to the benefit of the American Law Institute definition as a matter of right.

In Kojis v. Doctors Hospital ²⁰ we made a new rule prospective only except for the case in which we reached the decision to change the rule. We there quoted with approval Molitor v. Kaneland Community Unit District No. 302,²¹ as follows:

“At least two compelling reasons exist for applying the new rule to the instant case while otherwise limiting its application to cases arising in the future. First, if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in challenging the old rule which we now declare erroneous. Thus there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it.”

see no good reason why a particular defendant may not waive the benefit of the rule which imposes the burden of proof upon the state beyond a reasonable doubt. Accordingly, we direct that where a defendant pleads not guilty by reason of insanity, presents evidence that as a result of mental disease or defect (other than an abnormality manifested only by repeated criminal or otherwise antisocial conduct) he lacks substantial capacity to conform his conduct to the requirements of law, desires to be tried under the American Law Institute definition of the defense of insanity, and is willing to carry the burden of proof on the issue, he is to be permitted to waive such provisions of sec. 957.11 (1) and (2), Stats., as place the burden of proof on the insanity issue on the state, and have the jury instructed in terms of the American Law Institute definition. This option is to be available to Shoffner upon retrial, as well as to defendants in other cases not yet tried.

Such waiver should be written, signed by defendant and his counsel, and filed with the court before trial, with notice to the district attorney, along with a written request for appropriate instructions based on the American Law Institute definition of the defense of insanity ²² and an instruction that defendant has the burden, to satisfy or convince the jury, on this issue, to a reasonable certainty, by the greater weight of the credible evidence.²³

SUMMARY

A majority of the members of this court (Justices Gordon, Beilfuss, Heffernan, and Fairchild) agree that the definition of the defense of insanity to which a defendant is entitled as a matter of right, the burden of proof on the issue being, by statute upon the state, is the Esser definition.

A majority of the members of this court (Chief Justice Currie, and Justices Hallows, Wilkie, and Fairchild) agree that a defendant may have the option hereinbefore described, and agree that there be a new trial in this case, and that the defendant may exercise the option at the new trial.

In the views hereinafter expressed, in parts 2 to 6, inclusive, the members of the court are of one mind.

2. Alleged error in refusal of instructions. The court refused to instruct, as requested by defendant, that:

“. . . if you find the defendant not guilty by reason of insanity, he will not be released. If he is found to be not guilty by reason of insanity, he will be committed by this Court to the central state hospital or to some other institution designated by the State Department of Public Welfare and will be detained there until this Court in an appropriate mental examination shall determine that the defendant is sane and mentally responsible and further shall find that he is not likely to have a recurrence of insanity or mental irresponsibility such as would result in criminal acts.” ²⁴

The instruction is adapted from one which is approved in the District of Columbia.²⁵

The giving of this instruction is inconsistent with the ordinary rule that a jury is not to be informed of the effect of its answers upon the rights or liabilities of the parties. But we think an exception is justified in this difficult field because of the possibility that if the jurors are ignorant of the hospitalization required by statute and believe that a finding of not guilty by reason of insanity will free the defendant, they may be biased against such finding. We would prefer that the instruction be given, although we do not deem it prejudicial error not to have done so.²⁶

Defendant requested an instruction that in order for the jury to be convinced that defendant understood the nature and quality of his acts, “You must believe beyond a reasonable doubt that the defendant at the time he committed these acts had real insight into his conduct; that he was able to appreciate and evaluate these acts; that he was able to make normal moral judgments about them.” This instruction was refused.

The proposed instruction was based upon a portion of our opinion in Esser, supra. We there said, in discussing the element of understanding the nature and quality of the act: “Suppose that one vaguely realizes that particular conduct is forbidden, but lacks real insight into the conduct. He may be furtive about such conduct, but not really able to make a normal moral judgment about it.” We then pointed to expert testimony in the Esser record which we felt tended to create a reasonable doubt that he could appreciate and evaluate his act and to show that at the time of the killing Esser did not understand the nature and quality of his acts.

There is somewhat similar expert testimony in the Shoffner Case. Defense counsel could very properly argue to the jury that Shoffner’s lack of insight into his conduct raised a reasonable doubt of his understanding the nature and quality of his acts, but we do not consider that he was entitled to an instruction by the court as requested.

3. Alleged error on voir dire. Defendant challenges rulings which prevented his counsel from obtaining answers to four questions on voir dire. Since the case will be tried again, the questions will undoubtedly not arise in the identical posture, and none of the rulings involve a principle of substantial importance, we do not deal with this challenge.

4. Alleged failure of proof of arson. The circumstances of Shoffner’s entering into the home where he set fires have been reflected in the statement of facts. His momentary decision and its motivation, negativing consent, appear from his own statement. Mr. Buetemeister, who owned and occupied the home, testified that he had not given permission to anyone to start fires. Mrs. Buetemeister, who owned the home jointly with her husband, did not testify. Defense counsel contends that because the state did not produce testimony that Mrs. Buetemeister did not consent, the state failed to prove that Shoffner had damaged the “building of another without his consent.” ²⁷

Sec. 943.02 (2), Stats., defines “building of another” as “a building in which a person other than the actor has a legal or equitable interest which the actor has no right to defeat or impair, even though the actor may also have a legal or equitable interest in the building.” Under that definition it may be enough in any case to prove that one co-owner did not consent, particularly where, as here, such co-owner was in possession. Be that as it may, however, the only reasonable inference which can be drawn from the undisputed facts in this case is that Shoffner acted without the consent of any owner.

5. Alleged failure to prove venue with respect to the burglary. Through oversight, the state failed to produce testimony that the situs of the burglary was in Milwaukee county. Defense counsel challenges the propriety of the court’s taking judicial notice of certain facts in order to remedy the deficiency. Because there will be a new trial, where the oversight can be avoided, we need not consider the point.

6. Alleged error in admitting Shoffner’s statements. As reflected in the statement of facts, Shoffner was arrested shortly after 12:30 a. m., October 23, 1964. He was taken to the office of the district attorney about 3 p. m., and taken before a county judge, where he was represented by counsel, still later that afternoon. A very few minutes after arrest, he made an incriminating statement, and he made statements concerning a substantial number of offenses thereafter, only a few of which are directly involved in this case.

Defense counsel moved in advance of trial to suppress these statements, and challenges them on appeal on the ground that the first statement preceded any warning ■concerning the right to remain silent and right to counsel, that the first statement contaminated all the subsequent ones, and that the interrogation was unreasonably and unnecessarily long.

The circuit court denied the motion to suppress, orally stating findings which appear of record. In substance they were as follows:

Shoffner was nineteen, had been a graduate of a high school in the upper third of his class. He took part in athletics, had an interest in writing poetry and playing chess. He was employed (as messenger or copy boy) for a newspaper, and liked it. He was calm and cooperative during the interrogation, volunteered information. There were some 44 crimes involved.

He had no prior experience with police, but had seen an attorney, who was his guardian, four or five times. The court considered the interrogation unnecessarily long, but that it resulted because of Shoffner’s willingness to talk about a very long series of violations.

There were no physical pressures used, suggested, or threatened. He did not have a bed' in which to lie down and sleep, but dozed off a few times.

The arresting officer, by reason of his observations of the car driven and then abandoned by Shoffner, had probable cause to arrest. One or two police officers did 'intersperse their interrogation with the advice that Shoffner need not answer questions, and with asking him whether he wanted a lawyer. Shoffner never intimated he wanted a lawyer. The court was somewhat skeptical whether this advice was given in the order testified to, but felt the state had met the burden of proof, even though Shoffner denied it.

The circuit court stated that there could be only one conclusion; that the statements were the product of the free and unrestrained will, and were voluntary beyond a reasonable doubt.

We have reviewed the testimony taken on the motion to suppress, and are in accord with the findings of the learned trial court. In most respects the finding that the statements were voluntarily given is supported by Shoffner’s own testimony. He did claim that he confessed to some offenses he did not commit because he was tired and wanted to get rid of the officers. He conceded, however, that he was given food and coffee, was permitted to rest when he wanted to, that he declined an offer to lie down if he wanted to, that he told the officers something to the effect that he was happy he was caught. Although he testified on direct examination that he was not informed he was not required to talk and was not told he had the right to call an attorney, he conceded that some of the officers might have said that anything he said could be used against him, might have told him he had the right to call an attorney, and that one of the officers might have told him that because of the seriousness of the charges he should have an attorney.

Apparently defense counsel does not take issue with the findings of the court with respect to the voluntary nature of the statements, except to the extent of the two challenges above mentioned, the challenge to the first incriminating statement, which admittedly was made before any warning as to his rights, and to the length of the interrogation.

Officer Perlewitz, the arresting officer, described the first statement as follows:

“A. At that time I took him to the call box, and as I picked up the phone to call for a squad to assist me. I heard that there was the robbery at the Bite-A-Wee Restaurant. At this time I asked for assistance. I turned to defendant, and I said: ‘Do you know what else you are under arrest for?’ And he said: ‘Yes, I just held up the restaurant on Green Bay Avenue across from George Webb’s.’ I said: ‘And where did you get the car?’ He said: T stole it.’ I said — at this time the squads came, we put him in the squad, and I told him that he didn’t have to say anything, that anything that he said might be held against him, and he had a right to call a lawyer.

“Q. And at this time when you told him this, where was this? A. At the call box there as we were going into the squad.

“Q. This is prior to getting into the squad? A. Just as we were going into it.”

Shoffner denied this conversation, but testified that after he was in the car, the officers asked where he had gotten the money he had on his person and “I told them that I had got it from the restaurant.”

This trial took place before June 13, 1966, when the supreme court of the United States decided Miranda v. Arizona.28 Under the principles applicable to trials before that date, we would not consider it a denial of due process to admit proof of defendant’s answer to the officer’s question under the circumstances. Since this case is to be retried, the admissibility of any statements of defendant offered by the state should be determined by the trial court under the principles of Miranda. It appears from the present record that the defendant’s statement while at the call box was not spontaneously offered by defendant, was made after arrest in response to a question of the officer and prior to warnings on the subjects required by Miranda and therefore that such statement will be inadmissible upon a new trial.

With respect to the length of time from arrest until Shoffner was taken before a magistrate and the claim that statements were inadmissible as a result,²⁹ we agree with the circuit court that the readiness of Shoffner to give information about a large number of offenses affects the determination of the reasonableness of the delay. Although the matter of the restaurant robbery reached an accusatorial stage almost immediately, it appears that much of the time was consumed, first by Shoffner’s indicating in response to general questions that he had committed a number of other offenses, by his describing his modus operandi, and by a detective looking up a number of complaints where similar methods had been used, and checking them out with Shoffner, one by one. Of the three charges involved in this trial, the written statements concerning the robbery and burglary were written and signed by Shoffner early in the business day, and the investigation of the arson took place later, and was completed shortly before he was taken to the office of the district attorney, at approximately three. There was testimony that Shoffner’s guardian, an attorney, was present at the district attorney’s office as well as before the magistrate.

Under all the circumstances, we do not consider that the delay rendered the statements inadmissible.

By the Court. — Judgment reversed, cause remanded for further proceedings consistent with the opinion on file.

1 (1962), 16 Wis. (2d) 567, 599, 115 N. W. (2d) 505.

2 The American Law Institute, Model Penal Code, Proposed Official Draft, May 4,1962, p. 66, sec. 4,01.

3 United States v. Currens (3d Cir. 1961), 290 Fed. (2d) 761.

4 British Royal Commission on Capital Punishment Report (1949-1963), p. 116, par. 333.

5 Durham v. United States (D. C. Cir. 1954), 214 Fed. (2d) 862.

6 State v. Esser, supra, footnote 1, page 585.

7 Id. at page 596. Two members of the court, Mr. Justice Hef-FERNAN and the writer of this opinion, would choose this course if the Esser definition were abandoned, and the burden of proof on the issue imposed on the defendant.

8 Sec. 957.11 (1), (2), Stats.

9 15 Maine Rev. Stats. Anno., pp. 373, 374, sec. 102.

10 Smith-Hurd Ill. Anno. Stats., p. 213, sec. 6-2, ch. 38.

11 McKinney’s Consolidated Laws of N. Y., Anno., Revised Penal Law, Commission Staff Comments, p. 257, art. 30.

12 McKinney’s Consolidated Laws of N. Y., Anno., Revised Penal Law, p. 14, sec. 30.05.

13 People v. Nicolaus (1966), 48 Cal. Rptr. 353, 409 Pac. (2d) 193.

14 United States v. Currens, supra, footnote 3 (lack of substantial capacity to conform conduct); Wion v. United States (10th Cir. 1963), 325 Fed. (2d) 420 (American Law Institute definition); United States v. Freeman (2d Cir. 1965), 357 Fed. (2d) 606 (American Law Institute definition).

15 People v. Krugman (Mich. 1966), 141 N. W. (2d) 33.

16 State v. Colby (1966), 35 Ohio Op. (2d) 61, 6 Ohio Misc. 19.

17 Chase v. State (Alaska 1962), 369 Pac. (2d) 997; State v. White (1962), 60 Wash. (2d) 551, 374 Pac. (2d) 942, 959; Spurlock v. State (1963), 212 Tenn. 132, 368 S. W. (2d) 299; Dare v. State (Okla. Crim. 1963), 378 Pac. (2d) 339, 349; State v. Gramenz (Iowa 1964), 126 N. W. (2d) 285, 288; Cole v. State (Fla. 1965), 172 So. (2d) 898, and State v. Schantz (1965), 98 Ariz. 200, 210, 403 Pac. (2d) 521.

18 State v. Esser, supra, footnote 1, page 589.

19 See State v. Esser, supra, footnote 1, page 593.

20 (1961), 12 Wis. (2d) 367, 374, 107 N. W. (2d) 131, 107 N. W. (2d) 292.

21 (1969), 18 Ill. (2d) 11, 163 N. E. (2d) 89, 97.

22 See see. 4.01, Model Penal Code, quoted in footnote 40 of State v. Esser, supra, footnote 1, page 587.

23 See Wis J I — Civil, Part 1, 200.

24 Sec. 957.11 (3), (4), Stats.

25 Lyles v. United States (D. C. 1957), 254 Fed. (2d) 725. See also McDonald v. United States (D. C. 1962), 312 Fed. (2d) 847.

26 See Bean v. State (Nev. 1965), 398 Pac. (2d) 251, 256.

27 Sec. 943.02 (1) (a), Wis. Stats.

28 (Decided June 13, 1966), 384 U. S. 436, 86 Sup. Ct. 1602, 16 L. Ed. (2d) 694.

29 See Phillips v. State (1966), 29 Wis. (2d) 521, 535, 139 N. W. (2d) 41.