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Gray v. State
Citation. 7 N. W. 62 (Wis.
1953)
Author: T. Marquis Ramsey,
I, PhD, JD -candidate
Facts. A house was broken into sometime between 8:40 p.m. and 5:30 a.m., and clothing was stolen. The burglary statute defined "nightime" as one hour after sunset to one hour before sunrise. For the night in question, that meant from 8:30 p.m. to 3:23 a.m. Pierce (D) was seen near the area between 1:00 a.m. and 2:30 a.m. D was tried and found quilty of burglary. D appeals.
Issue. May the nightime requirement be inferred from the evidence?
Held. Yes. Judgement affirmed.
(1) The circumstantial evidence allowed the jury to infer that the crime was done in the nightime. This inference satisfies the nightime element of the offense.
(2) If D had not been seen, a conviction of burglary would have been improper because the jury could only have assumed that D committed the opffense in the nightime.
Commentary. At common law, the nightime was from sunset to sunrise. Most states now have eliminated the nightime requirement, although a nightime burglary may result in more severe punishment.