This is an action for a writ of habeas corpus to review a first-degree murder conviction obtained in the circuit court for Wood county on December 10, 1952. The petitioner, Edward Frank Kanieski, hereinafter defendant, discovered the body of Clara Bates, the elderly unmarried proprietor of a tavern located in the town of Grand Rapids, Wood county, at 6 p.m. on June 30, 1952. The doctor performing the autopsy testified that Miss Bates had been strangled and battered about the head and face and died about 3:15 a.m. on June 29, 1952, with a leeway of twelve hours either way. She had had intercourse prior to her death, but the doctor was unable to say how long before. The murder was extremely bloody with bloodstains being found on both the walls and the ceiling of the room in which the body was found.
On September 2, 1952, following a John Doe investigation as authorized by sec. 354.025, Stats. 1951, defendant was charged with the premeditated murder of Miss Bates contrary to sec. 340.02, Stats. 1951. Following a preliminary hearing, defendant was bound over for trial to a jury in the circuit court for Wood county, Hon. HERBERT A. BUNDE presiding. Defendant was at all times at the preliminary and during the trial represented by court-appointed counsel. The jury returned a verdict of guilty, and following the denial of motions after verdict, defendant was sentenced to the Wisconsin state prisons for the rest of his natural life.
Although no appeal was taken from the judgment, defendant has, for the past twenty years, asserted his innocence. A petition for habeas corpus raising issues differing from those raised here was denied by this court on June 22, 1964. In 1966 this court affirmed an order of the Wood county circuit court denying defendant's petition for a writ of error coram nobis on procedural grounds. A petition for a writ of habeas corpus was considered by this court in 1968. An evidentiary hearing was held following which this court denied the petition. In the opinion denying that petition this court stated:
"We, therefore, conclude that although the petitioner did, through his trial counsel, approach the trial judge concerning an appeal, he was not told that he could not appeal for lack of funds; that the trial judge did tell defendant's attorney that appointment of an attorney for appeal would have to be made by the Supreme Court and that no appeal or notice of appeal was filed within one year after the date of the judgment."
"However, since the time for appeal has long since expired, we would observe that although only jurisdictional errors have been traditionally reviewable by habeas corpus, this court has enlarged the scope and purpose of the writ to review alleged violations of substantial constitutional rights, both as to post-conviction and pre-conviction remedies. Therefore, on habeas corpus, this court might consider the merits which could have been raised on appeal."
Federal habeas corpus had been denied by Judge JOHN W. REYNOLDS of the Eastern Federal District of Wisconsin on November 22, 1966. After the denial of habeas corpus in 1968, Kanieski petitioned for habeas corpus in the Western Federal District. This petition was denied on June 20, 1969, and that denial was affirmed by the Court of Appeals for the Seventh Circuit on June 9, 1970.
The present petition raises questions not decided in the previous petitions and actions before this court.
WILKIE, J.
Two issues are presented by this petition:
1. What is the scope of this court's review in this habeas corpus proceeding?
2. Was the evidence sufficient to sustain the conviction?
Scope of review.
An action for habeas corpus is a collateral proceeding which normally can be used to raise questions concerning the jurisdiction of the convicting court, the validity of the conviction as against a charge that the law under which the defendant was convicted is void, and constitutional defects in the conviction process; it is normally not used to raise such questions as the sufficiency of the evidence.
Cf. State v. Langston (1971), 53 Wis.2d 228, 231, 191 N.W.2d 713.
In the present case, however, defendant was convicted long before the United States Supreme Court ruled that an indigent criminal defendant has the right to appeal from his conviction with court-appointed counsel. In 1952 any appeal of his conviction as an indigent criminal defendant was governed by the provisions of sec. 357.26, Stats. 1951, whereunder an appeal was not a matter of right but a matter for the discretion of this court. Defendant did not appeal his conviction and was not afforded an appellate review. Under these special circumstances and in accordance with this court's 1968 opinion, this court invited the present habeas corpus in order to afford the defendant an opportunity to raise questions he could have raised on an appeal.
Douglas v. California (1963), 372 U.S. 353, 83 Sup.Ct. 814, 9 L.Ed.2d 811.
"357.26 Counsel for indigent defendants charged with felony; advice by court. . . .
"(3) If appointment of counsel has not been so made as to include services upon appeal or writ of error, or if no counsel was appointed in the trial court, the supreme court or the chief justice, upon timely notice to the district attorney and upon being satisfied that review is sought in good faith and upon reasonable grounds (or if the appeal or writ of error is prosecuted by the state) may appoint counsel to prosecute or defend such appeal or writ of error. If no counsel was appointed in the trial court, the defendant shall be required to show his inability to employ counsel. Upon the certificate of the clerk of the supreme court the county treasurer shall pay the attorney such sum for compensation and expenses as the supreme court allows."
Sufficiency of the evidence.
While the state must prove defendant's guilt beyond a reasonable doubt, on appeal this court's review is limited to determining whether the evidence adduced, believed and rationally considered by a jury was sufficient to prove defendant's guilt beyond a reasonable doubt. Reversal is required only when the evidence considered most favorably to the state and the conviction is so insufficient in probative value and force that it can be said as a matter of law that no trier of facts acting reasonably could be convinced to that degree of certitude which the law defines as beyond a reasonable doubt.
In re Winship (1970), 397 U.S. 358, 364, 90 Sup.Ct. 1068, 25 L.Ed.2d 368.
Bautista v. State (1971), 53 Wis.2d 218, 223, 191 N.W.2d 725.
State v. Davidson (1969), 44 Wis.2d 177, 200, 170 N.W.2d 755.
A review of the evidence presented in this case demonstrates that as a matter of law no trier of fact could be convinced that defendant was guilty beyond a reasonable doubt. 1. Direct or Scientific Evidence. The direct or scientific evidence found at the scene of the crime lacks sufficient probative value to convict the defendant. This conclusion follows from a consideration of the particular items of direct evidence presented on the trial: pubic hair, rope surrounding deceased's neck, insulation material, rug strands, and dog hairs.
(a) Pubic Hair. Human pubic hair was found at the scene of the crime. The technician from the state crime laboratory compared this pubic hair with a sample of hair taken from the defendant. His testimony was that the hair found at the scene "could have had a common source" with that taken from the defendant, although it could not be identified as defendant's hair. The analyst further testified that the "common source" could be any human being. Considering that the tavern was a known place of prostitution, the discovery of pubic hair near the body has even less relevance.
(b) Rope. A rope found around deceased's neck contained material which was said "could have had a common source" with defendant's trousers. There is no testimony as to how common this material was. The state laboratory employee said that he could not say that the material did come from defendant's trousers. This is not enough to support the conviction. The expert witness could not testify that the fiber came from defendant's clothing and the jury, therefore, could not be more certain than the expert witness in passing upon such evidence.
23 C.J.S., Criminal Law, pp. 500, 501, sec. 891; Thomas v. State (1947), 150 Tex.Crim. 540, 545, 203 S.W.2d 536.
(c) Insulation Material. Certain insulation material was found on the bedspread and also on the defendant's trousers. But again, the expert stated only that the material "could have had a common source." He also could not say how long the material was on either the bedspread or the trousers.
(d) Rug. Fibers from a rug in the victim's room "could have had a common source" with fibers removed from defendant's trousers.
(e) Dog Hairs. Certain dog hairs were found on the defendant's person which "could have come from a common source" as that of Miss Bates' dogs. The record shows that the defendant frequently played with the dead woman's dogs.
The state concedes that under the 1954 decision of State v. Bradley evidence which "could have come from a common source" is not sufficiently probative to prove defendant's guilt beyond a reasonable doubt. That decision, in the absence of any statement that the ruling would be prospective only, was retrospective in operation and hence was applicable to the trial in this case.
(1954), 267 Wis. 87, 88, 64 N.W.2d 187.
State v. Ritchie (1970), 46 Wis.2d 47, 174 N.W.2d 504.
The attorney general argues that all of these bits of "common source" evidence, coupled with the failure of defendant to advance any reasonable theory of innocence regarding this evidence, presents a situation in which a jury could find defendant guilty beyond a reasonable doubt. The direct evidence simply did not have enough probative value to convict this defendant. The testimony of the state crime laboratory's technician saying that the items "could have had a common source" with the defendant or his clothing did not sufficiently establish a tie-in so that the jury could have concluded therefrom that the defendant committed the alleged crime.
2. Circumstantial Evidence. The state theorized that between 1 a.m. and 2 a.m. on Sunday morning, June 29th, defendant returned to the Bates' tavern where he had been about 12:20 a.m. The state further theorized that when he returned to the tavern he raped and killed Miss Bates. There is no evidence to place the defendant in the proximity of the tavern after 12:20 a.m. Further, the state concedes that there was no evidence of motive on the part of defendant. Defendant did testify that from the Bates' tavern he went to the Worzella tavern where he stayed until approximately 1 a.m. He had had several drinks and was having trouble with his car. The ride from the second tavern to his home normally took twenty minutes but on this occasion he testified it took one hour. He stated that he could not be certain of the time because of his intoxication and because he had no watch. Even though defendant was confused and vague about this period of time from 1 to 2 a.m., the state was required to produce some evidence that placed the defendant in the proximity of the tavern after 12:20 a.m. This it failed to do and a reasonable jury could not draw a conclusion placing the defendant at the scene at the crucial time.
Recently in Bautista v. State this court had the occasion to discuss the standard of review in cases relying upon circumstantial evidence:
Supra, footnote 9, at page 223.
". . . A criminal conviction can stand based in whole or .in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. Our review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules."
See also: State v. Johnson (1960), 11 Wis.2d 130, 135 et seq., 104 N.W.2d 379.
The precise question in this case on this point thus becomes whether it was reasonable to draw the inference that because defendant may have taken forty minutes more to go home from the tavern he stopped at the tavern to rape and murder Miss Bates. The only evidence of this fact is the circumstantial evidence — there is no direct evidence.
A jury may draw reasonable inferences from facts established by circumstantial evidence, but it may not indulge in inferences wholly unsupported by any evidence. The inferences must be supported by facts, and the defendant cannot be convicted on mere suspicion or conjecture. In this case, taking the evidence most favorable to the state, we find that the only established fact is that defendant took forty minutes too long in getting home. There is no fact to support the proposition that he went back to the Bates tavern, that he had some reason to kill Miss Bates, or that he committed the crime.
People v. Weyonen (1929), 247 Mich. 308, 311, 225 N.W. 552.
23 C.J.S., Criminal Law, pp. 539, 540, sec. 902; Miller v. State (Fla. Sup.Ct. 1954), 75 So.2d 312, 315.
3. Conclusion. The direct scientific evidence is not sufficient to support conviction and the circumstantial evidence is not based upon sufficient facts so that a jury might reasonably infer defendant's guilt. Therefore, the state's burden of proof was not met as a matter of law. The petitioner is thus entitled to release from custody and his freedom, without the possibility of a new trial.
Cf. State v. Muhammad (1968), 41 Wis.2d 12, 23, 162 N.W.2d 567.
Because reversal is required by the insufficiency of the evidence it is unnecessary to consider the other issues raised by the defendant here.
By the Court. — The petitioner having had a hearing such as he would have had, had the writ of habeas corpus been issued, it is considered that the issuance of the writ be omitted and it is adjudged that the judgment of the circuit court is vacated and that the warden of the Wisconsin correctional institution is directed to release the petitioner.