INTRODUCTION TO SUBSTANTIVE CRIMINAL LAW §1
Professor Walter J. Dickey
Vic, the victim, and Dave, the defendant, had been roommates until their inability to get along led Dave to move to another apartment last month. When Dave moved out, Vic told him never to set foot in the place again.
Fact Situation 1Vic testifies that he came home and found Dave carrying his (Vic’s) TV, valued at $3,000, out of the apartment. Vic says he did not give Dave permission to enter the apartment.
Fact Situation 2Vic testifies that he was home when Dave came to the door, demanded the TV set, and claimed he had paid for it when the two originally furnished the apartment. Vic says Dave then barged past him into the apartment and, when he saw that the TV was a new one—not the TV originally in the apartment—he said he would take it in payment anyway. Dave denies he “barged” past Vic, saying that Vic invited him in, that they initially chatted amicably, and that he took the TV when Vic refused to pay him for the TV he (Dave) had bought.
In each fact situation presented above, the District Attorney’s Office charged Dave with Burglary in violation of §943.10 of the Wisconsin Statutes, Criminal Trespass to Dwellings in violation of Wis. Stat. §943.14 and Theft in violation of §943.20. In each case, there is a request to the trial judge to instruct the jury on all the charged offenses and on Attempted Theft in violation of §939.32.
(a)You are the trial judge. After careful consideration of the materials at pp. 18-50, explain what offense or offenses you will submit to the jury for its verdict(s). With reference to each fact situation, you should decide whether a conviction for more than one offense is permissible.
(b)You are the jury. Consider the offenses submitted, return a verdict and explain your answer.
Selected Excerpts from the Wisconsin Statutes
943.10 Burglary. . . .
(1m) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel.
943.14 Criminal trespass to dwellings. Whoever intentionally enters the dwelling of another without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a breach of the peace, is guilty of a Class A misdemeanor.
943.20 Theft. (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of such property.
(b) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally uses, transfers, conceals, or retains possession of such money, security, instrument, paper or writing without the owner’s consent, contrary to his or her authority, and with intent to convert to his or her own use or to the use of any other person except the owner. A refusal to deliver any money or a negotiable security, instrument, paper or other negotiable writing, which is in his or her possession or custody by virtue of his or her office, business or employment, or as trustee or bailee, upon demand of the person entitled to receive it, or as required by law, is prima facie evidence of an intent to convert to his or her own use within the meaning of this paragraph.