Using the name W. H. Eldredge, Nicholls stayed at a Black River Falls hotel and arranged to ship a roughly 225-pound box by express to Chicago. The box was placed in an express car on the evening train. After suspicions and telegrams from Black River Falls, railroad personnel opened the box at Elroy and found Nicholls concealed inside, carrying a revolver, billy, razor, knife, rope, gimlet, and chloroform.
The evidence showed that the express car carried money and that, after Elroy, it ordinarily would be attended by only one express employee. Nicholls voluntarily stated that he needed money quickly, expected to obtain $50,000, and had contemplated that a human life standing in his way would not matter.
A jury convicted Nicholls under the second count of an information charging that he broke and entered the American Express Company's freight and express car with intent to commit robbery or larceny. He moved in arrest of judgment, arguing that the charge and proof did not satisfy the governing statute. The circuit court's judgment was affirmed.
Issue #1
Whether the information sufficiently charged the statutory offense even though it alleged that Nicholls “did break and enter” without expressly stating that the offense occurred in the daytime.
Holding
Yes. By alleging both a breaking and an entry without alleging nighttime, the count effectively charged a daytime breaking and entry under the applicable statute.
Reasoning
The statute covered either an entry at night without breaking or a breaking and entry in the daytime, when done with intent to commit one of the listed felonies. A nighttime breaking and entry was instead a higher-grade offense governed by the preceding section, and the information plainly was not intended to charge that offense.
Because the count alleged a breaking as well as an entry but did not allege that the conduct occurred at night, it effectively alleged a daytime offense. The evidence also supported that characterization: under the common-law understanding of day and night, enough daylight or twilight remained to discern a person's face, so the entry was deemed to have occurred during the day.
Issue #2
Whether concealing oneself in a box shipped into an express car by fraud constituted a statutory “breaking.”
Holding
Yes. Nicholls's fraudulent entry into the express car was a constructive breaking.
Reasoning
Nicholls did not physically force a lock, door, or other part of the car. The box was loaded with the knowledge and assistance of persons responsible for the car, but their consent extended only to the shipment of goods, wares, or merchandise—not to the secret transportation of a man concealed in a box.
Nicholls knowingly obtained entry through deception, false pretenses, and circumvention. The evidence permitted the jury to find that he used that deception to enter the car intending to rob or steal, and, if necessary, to murder. At common law, entry procured by fraud or pretense for a felonious purpose was a constructive breaking because the law does not permit a criminal to evade the breaking requirement through trickery.
Wisconsin's statutory provision deeming an unlawful entry into a dwelling or building a breaking did not abolish or narrow the common-law doctrine. It enlarged the doctrine in the situations named. Because the legislature used the established term “break” in the railroad-car statute, the Court presumed it carried its settled common-law meaning, including constructive breaking.
Issue #3
Whether describing the place entered as the American Express Company's “freight and express car” adequately alleged entry into a railroad freight or passenger car under the statute.
Holding
Yes. The description sufficiently identified a railroad freight car.
Reasoning
An express car is necessarily used for freight carriage, and an express car operating on a train is a railroad car. Although not every railroad freight car is an express car, the allegation of a “freight and express car” adequately placed the charged conduct within the statute.
Courts and juries may take judicial notice of ordinary facts about railway and express transportation, including that an express car is a railroad car. The Court therefore found the information sufficiently definite, particularly after a verdict had been returned.
Issue #4
Whether the State had to prove beyond a reasonable doubt that the express company owned the car.
Holding
No. Proof that the express company possessed, occupied, and controlled the car was sufficient.
Reasoning
The precise legal ownership of the car was collateral to the central question—whether Nicholls unlawfully broke into the car with felonious intent. The State was not required to establish whether the car belonged legally to the express company or to the railway company.
Evidence of the express company's exclusive possession, occupancy, and control adequately supported the allegation of ownership. Requiring strict proof of title could make prosecution needlessly difficult when the essential elements of the offense were otherwise readily provable.
Issue #5
Whether the prosecutor's reference to Nicholls's failure to be sworn required reversal.
Holding
No. On the record presented, the Court presumed the prosecutor's remark was proper.
Reasoning
The record did not preserve the prosecutor's actual words or the context in which they were made. It showed only that the prosecutor commented on Nicholls's not having been sworn and that the trial court indicated it was probably permissible to argue that the offense had not been denied.
The jury already knew that Nicholls had not testified, and the evidence included undisputed proof and his voluntary admissions of guilt. Without a fuller record establishing improper argument or prejudice, the Court applied the presumption that the trial court's ruling was correct.