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09/26/83 STATE WISCONSIN v. WILLIAM C. ROTH

September 26, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
WILLIAM C. ROTH, DEFENDANT-APPELLANT



Appeal from a judgment and an order of the Circuit Court for Milwaukee County: John F. Foley, Judge.

Petition to Review Granted.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Wedemeyer

William C. Roth (Roth) appeals from a judgment of conviction entered May 12, 1982, following a jury trial, wherein he was found guilty of theft by lessee, contrary to secs. 943.20(1) (e) and (3) (b), Stats. Roth also appeals from the trial court's order entered February 17, 1983, denying his post-conviction motions. The dispositive issues *fn1 on appeal are: (1) whether sec. 943.20(1) (e) is unconstitutional because it amounts to imprisonment for debt contrary to article I, section 16 of the Wisconsin Constitution; and (2) whether Roth is entitled to a new trial because the trial court erred by failing to instruct the jury on the element of "intent to defraud." Because we hold that sec. 943.20(1) (e) is constitutional and that Roth has waived his claim of error regarding the instructions, we affirm the trial court's judgment and order.

On August 28, 1980, Roth rented an automobile from a West Allis leasing firm. Roth paid a $30 deposit. The automobile was to be returned September 3, 1980. Roth did not return the automobile until November 18, 1980.

Roth first argues that sec. 943.20(1) (e), Stats., is unconstitutional because it amounts to imprisonment for debt contrary to article I, section 16 of the Wisconsin Constitution. We disagree.

Section 943.20(1) (e), Stats., reads as follows:

Theft. (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):

(e) Intentionally fails to return any personal property which is in his possession or under his control by virtue of a written lease or written rental agreement, within 10 days after the lease or rental agreement has expired.

Article I, section 16 of the Wisconsin Constitution reads as follows:

Imprisonment For Debt. Section 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.

Regarding a challenge to the constitutionality of a statute, our supreme court has stated:

". . . here are applicable in this case the rules, (1) that the statute is presumed to be constitutional and will be held unconstitutional only if it appears so beyond a reasonable doubt. nd (2) that the burden of establishing the unconstitutionality of a statute is on the person ...


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