S. Harrison Kahn, Washington, D.C., Thomas D. Pucci, Providence, R.I., for plaintiff, Short Line, Inc.
Knight Edwards, Providence, R.I., Russell R. Sage and L.C. Major, Jr., Washington, D.C., for intervenor-plaintiff, Greyhound Lines, Inc.
Edwin M. Zimmerman, Asst. Atty. Gen., John H.D. Wigger, Atty., Dept. of Justice, Washington, D.C., Edward P. Gallogly, U.S. Atty., Frederick W. Faerber, Jr., Asst. U.S. Atty., Providence, R.I., for defendant, United States.
Robert W. Ginnane, Gen. Counsel and Steven Kazan, Attorney, Interstate Commerce Commission, Washington, D.C., for defendant, Interstate Commerce Commission.
Mary E. Kelley, Boston, Mass., Salvatore L. Virgadamo, Newport, R.I., Beverley S. Simms, Washington, D.C., for intervening defendant, Almeida Bus Lines, Inc.
Before McENTEE, Circuit Judge, and GIGNOUX, District Judge and PETTINE, District Judge.
This is an action under 305(g) of Title 49, and Sections 1336, 1398, 2284 and 2321-2325 of Title 28 United States Code to set aside and annul an Order of the defendant, Interstate Commerce Commission Division 1, acting as an Appellate Division, entered on November 16, 1967, and served on December 5, 1967, in Docket No. MC-124935 (Sub. No. 3) Almeida Bus Lines — Extension — New York City affirming the Report and Order of Operating Rights Review Board No. 3 of the Interstate Commerce Commission entered on May 19, 1967 reported at 106 M.C.C. 311 (1967). The applicant was granted a certificate of public convenience and necessity to transport passengers and their baggage, and express and newspapers in the same vehicle over several described routes between Wareham, Massachusetts and New York City, New York. Essentially the authority granted permits direct single line service between New York City and the Cape Cod area of Massachusetts. At the time of the application, Almeida was conducting operations between Boston, Massachusetts and Cape Cod.
The intervening complainants, Greyhound Lines, Inc. and The Short Line, Inc., are both authorized motor bus operators which now participate in a joint line regular-route service between New York City and Newport, Rhode Island and the involved Cape Cod area.
The statutes involved in this case are Part II of the Interstate Commerce Act, Sections 206(a)(1), 207(a) and 208(a) ( 49 U.S.C. §§ 306(a)(1), 307(a), and 308(a)); the National Transportation Policy declared in the Interstate Commerce Act (49 U.S.C. Policy preceding Section 1); and Section 10(e) of the Administrative Procedure Act (5 U.S.C. § 1009).
In substance, the complaint alleges that the action of the Commission was unlawful and erroneous in that it was contrary to law, unsupported by substantial evidence, and arbitrary and capricious.
The only question before this court is whether the Commission's decision that the public convenience and necessity require Almeida's bus operation is supported by substantial evidence of record and in accordance with the applicable law.
It is well settled that the scope of judicial review of Commission orders is limited and well defined. In the absence of a finding that the agency's actions are arbitrary, capricious or an abuse of discretion or unsupported by substantial evidence, it cannot be set aside. The judicial function on review is fully met when it finds a rational basis for the Commission's conclusions.
United States v. Pierce Auto Freight Lines, 327 U.S. 515, 535-536, 66 S.Ct. 687, 90 L.Ed. 821 (1946); Rochester Telephone Corp. v. United States, 307 U.S. 125, 138-140, 59 S.Ct. 754, 83 L.Ed. 1147 (1939); Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-287, 54 S.Ct. 692, 78 L.Ed. 1260 (1934); Interstate Commerce Commission v. Union Pacific Railroad, 222 U.S. 541, 547-548, 32 S.Ct. 108, 56 L.Ed. 308; Illinois Central Railroad v. Interstate Commerce Commission, 206 U.S. 441, 27 S.Ct. 700, 51 L.Ed. 1128; Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Section 10(e) of the Administrative Procedure Act (5 U.S.C. § 1009(e) 1964 ed.) gives a reviewing court authority to "set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, (or) an abuse of discretion * * * (or) unsupported by substantial evidence * * *" Cf. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 286-287, 54 S.Ct. 694, "The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body."
This court has been unable to find any basis for the plaintiff's contention that the Commission's findings are unsupported by substantial evidence of record. The record is vast, and a reading of it as a whole does not show it to be devoid of substantial evidence supporting its conclusions. Though occasionally the record may well support two conflicting points of view, the reviewing court cannot determine which is the correct result.
United States v. Interstate Commerce Commission, 91 U.S.App.D.C. 178, 198 F.2d 958, 963-964, cert. denied, 344 U.S. 893, 73 S.Ct. 212, 97 L.Ed. 691. We have defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. "It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Board v. Columbian Enameling Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. National Labor Relations Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 86 L.Ed. 1305; Keele Hair Scalp Specialists, Inc. v. F.T.C., 275 F.2d 18, 21.
Congress was very deliberate in adopting this standard of review. It frees the reviewing Courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute. These policies are particularly important when a court is asked to review an agency's fashioning of discretionary relief. In this area agency determinations frequently rest upon a complex and hard-to-review mix of considerations. By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.
* * * The test on judicial review is, of course, whether the action of the Commission is supported by "substantial evidence on the record viewed as a whole," 5 U.S.C. § 1009(e)(5). Substantial evidence is "enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Board v. Columbian Enameling Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939).
Illinois Central Railroad Co. v. Norfolk Western Railway Co. et al., 385 U.S. 57, 87 S.Ct. 255, 17 L.Ed.2d 162 (Nov. 14, 1966), "as was said in Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) `the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.' It is not for the court to strike down conclusions that are reasonably drawn from the evidence and findings in the case. Its duty is to determine whether the evidence supporting the Commission's findings is substantial. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)."
The plaintiffs' attacks on the substantiality of the record evidence and the rationality of the Commission's decisionmaking included five major, specific points. First, the plaintiffs claimed that record showed not a scintilla of testimony as to metropolitan New York support for the application. But the briefs, record and Operating Rights Review Board opinion all reflect the testimony of several institutional witnesses that their personnel from the New York area would both benefit from and use the service. Second, the plaintiffs claimed that the Commission's exclusion of Fall River together with its inclusion of New Bedford in the application is a distinction so completely without a difference as to amount to an arbitrary classification. That argument ignores the Commission's reliance on the existing facilities of Almeida at New Bedford, its desire to protect Short Line's Fall River revenues, and its attempt to lessen the total travel time of the Almeida route. Third, the plaintiffs argue that the Commission's basis for its decision to protect the Fall River market is so contrary to the documentary evidence as to be capricious, and that such capriciousness is symptomatic of a broader malady that infects the entire record. The argument even if true, proves too much. If it is true, then our conclusion should be not that the whole record is tainted but rather that Fall River should be reincluded in the application. And plaintiffs hardly desire that to be the object of their efforts. Furthermore the argument is not valid, because, as we stated previously, there are other reasons why Fall River was properly excluded from the application. Fourth, the plaintiffs argue that an analysis of certain documentary exhibits undermines the Commission's conclusions with respect to time savings over the new route. Concededly, the time differentials, if any, are slight. But we do not take it to be our function to reverse a Commission decision three years in litigation and based on sound evidence because of a slight evidentiary flaw.
Finally, the plaintiffs argue that the Commission's failure to grant oral argument en banc and the Appellate Division's wholesale adoption of the Operating Rights Review Board's decision is so whimsical as to constitute reversible error. The Commission did adopt the pre-Commission consideration of the issues by the intermediate employee boards and officers. But there is no merit to this contention. The order clearly shows it considered the record and concluded that the findings of the intermediate board, Operating Rights Review Board No. 3, were in accordance with the evidence and the applicable law.
At a Session of the INTERSTATE COMMERCE COMMISSION, Division 1, Acting as an Appellate Division, held at its office in Washington, D.C., on the 16th day of November, A.D. 1967.
Accord, Trailways of New England v. United States, D.C., 235 F. Supp. 509, at 512, which recognized the specific statutory power added to Section 17(5) of the Interstate Commerce Act, 49 U.S.C. § 17(5) in 1961, permitting the Commission to authorize employee boards to perform "functions of the same character as those which may be performed thereunder by duly designated divisions."
The plaintiffs' contention that a new regulatory criteria was employed by the Commission and its Review Board is based on the proposition that there was a departure from the standards of the Pan-American Bus Lines case. In this case the Commission declared, in its interpretation of Section 207(a), supra, "the question, in substance is whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operation of existing carriers, contrary to the public interest."
"In a proceeding of this nature an applicant has the burden of demonstrating the existence of a public need for the proposed operation before we may authorize a grant of common carrier authority. In connection with this requirement, the existing operations of any opposing carriers become an important element for our consideration. This, however, cannot be the limit of our inquiry * * * Accordingly it is necessary that we consider the maintenance of a balanced passenger transportation `system' within the scope of the application and that we evaluate factors such as the existence of sufficient carrier capacity to encourage competition, incentive for real innovation and improvement in services to the public, and constraint against monopolistic motor-bus operations."
Operating Rights Review Board decision, Advance Sheet, p. 323.
We see nothing in the language or holding of the Commission which abrogates or contradicts the doctrine of Pan-American. To suggest that the Commission's use of the phrase "balanced * * * transportation `system'" changes the criteria of Pan-American is the height of semanticism, especially where, as here, the evidentiary conclusions and holdings of the Commission point to an orderly consideration of the elements of Pan-American: (1) apublic need; (2) not adequately serviced at the present or for the near future; (3) the satisfaction of which need will not endanger the operation of presently existing carriers. Indeed, most of the plaintiffs' arguments were devoted to attacking, step by step, the Commission's consideration of whether the criteria of Pan-American were met. By their very methodology, plaintiffs demonstrate that Pan-American's three-pronged standard was the law applied by the Commission.
Assuming, arguendo, that the Commission's "balanced transportation" theory did modify the Pan-American standard, that modification is best characterized as supplemental and not contradictory. And when the supplemental principles articulated by the Commission are imbedded not only in the policy preamble of the governing statutory scheme, 49 U.S.C. § 1, but also in the primary statutory law governing economic regulation and competition in the United States, 15 U.S.C. § 1, 2, then their invocation can only be salutary. This is not to say that the National Transportation Policy gives the I.C.C. carte blanche to make the stimulation of competition the sole and exclusive basis for the granting of certificates of public convenience and necessity. Nor is it to endorse the wholesale incorporation of the anti-trust laws into Commission decisions concerning certificates of public convenience and necessity. That is a thicket we do not enter; we hold only that competitive stimulation and anti-monopoly prophylaxis may be factors to be considered by the I.C.C. in granting or denying certificates of public convenience and necessity.
Sec Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051. Cf. Pan American Airways Co. v. Civil Aeronautics Board, 121 F.2d 810 (2d Cir. 1941).
The Commission's decision is affirmed in all respects. The temporary restraining orders heretofore entered are hereby dissolved. Judgment may be entered accordingly.
It is ordered, That the said petitions be, and they are hereby, denied, for the reason that the findings of Operating Rights Review Board Number 3 in its report of May 19, 1967, are in accordance with the evidence and the applicable law and no sufficient or proper cause appears for reopening the proceeding for reconsideration or oral argument.
It is further ordered, That, unless compliance is made by applicant with the requirements of Sections 215, 217 and 221(c) of the Interstate Commerce Act, within 90 days after the date of service of this order, or within such additional time as may be authorized by the Commission, the grant of authority made in the report and order entered herein on May 19, 1967, shall be considered as null and void and the application shall stand denied in its entirety effective upon the expiration of the said compliance time.
By the Commission, Division 1, acting as an Appellate Division.


text:
To raise the “accident” defense, the act resulting in the loss, death or injury must have been the result of doing a lawful act in a lawful manner. R.C.M. 916(f). The defense of accident excuses a lawful act, in a lawful manner, which causes an unintentional and unexpected result. United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999), aff’d 56 M.J. 12 (C.A.A.F. 2001). In Marbury the Military Court found that a defendant cannot raise the “accident” defense where she acting unreasonably in brandishing a knife to try to coerce a trespasser to leave her room.
For an act that resulted in loss to be an “accident,” the ensuing loss must be an unanticipated result of the act, and there must have been no negligent behavior. In United States v. Moyler, 47 C.M.R. 82, 85 (A.C.M.R. 1973), the Court determined that an “accident” does not exist where the defendant carried a gun with the safety off and the selector on automatic. The defendant’s behavior was deliberate and negligent, and the resulting injury was not an unexpected consequence.
If the accident happens during the commission of an unlawful act and the unlawful act was the proximate cause of the loss, then the accident defense is not available. In United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954), the defendant accidentally discharged a gun that he possessed in violation of the law, resulting in death. The Military Court concluded that the “accident” defense was no available because the defendant’s carried it in violation of a local ordinance. In United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972), the Court made it clear that an accident instruction could be denied only if the illegal act was the proximate cause of the injury or loss.
The accident defense cannot be raised where an act is specifically directed and intended at a person, but the ultimate consequence of the act was an injury or loss that was not intended. In United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993),Library of Congress: Military Law the Military Court held that in a case where the defendant randomly fired his weapon in a sham firefight in an inhabited area, it was clear that death or injury was the probable consequence, even if not intended, the “accident” defense was not available. In United States v. Femmer, 34 C.M.R. 138 (C.M.A. 1964) the Court determined that the “accident” defense was not available where the defendant had a razor blade in his hand when he tried to push the victim away from him. That the victim was injured was an expected consequence of the defendant’s actions. In United States v. Pemberton, 36 C.M.R. 239 (C.M.A. 1968), the Court concluded that where the victim was injured while struggling with the defendant over a broken beer bottle, the accident defense was available since the defendant’s act was not directed toward the victim, but at wrestling the bottle from the victim.
A defendant may not raise the defense of accident when the act that caused the loss or injury was negligent.
United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954).
The Court held that the defense of accident was not available in a homicide case where the defendant unintentionally killed the victim when he negligently pushed open a door with a loaded gun.
United States v. Redding, 34 C.M.R. 22 (C.M.A. 1963).
United States v. Moyler, 47 C.M.R. 82 (A.C.M.R. 1973).
The Court determined that an accident does not exist where the defendant negligently carried a gun with the safety off and the selector on automatic.
United States v. Leach, 22 M.J. 738 (N.M.C.M.R. 1986).
The Court found that the accident defense was not available where the defendant negligently swung a knife near the victim.
United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000).
The Court concluded that there was no “accident” defense where the defendant was negligent in failing to properly secure his daughter in her car seat.
United States v. Ferguson, 15 M.J. 12 (C.M.A. 1983).
The Court held that the defendant was negligent in waving a loaded shotgun without ensuring that the safety was in place.
A defendant may not be able to raise an accident defense where the defendant was negligent while acting in self-defense. In United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980), the Court determined that the defendant was negligent in using a switchblade as a means of self-defense. On the other hand, in United States v. Taliau, 7 M.J. 845 (A.C.M.R. 1979) the Court found that the defendant’s use of self-defense was lawful, even though an innocent third party was unintentionally injured.
The fact that a defendant acted in such a way that the defense of accident is not available does not mean that the defendant necessarily committed assault.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
ERROR to review a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the plaintiff in error there was a brief and oral argument by Leonard S. Zubrensky of Milwaukee.
For the defendant in error the cause was argued by Paul T. Miller, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Hugh R. O'Connell, district attorney.
Invalidity of the search and seizure and insufficiency of the evidence to support the conviction for attempted theft are the principal errors alleged on this writ of error.
At approximately 3:15 a.m. on the morning of April 16, 1964, Mr. Hershel Tuller, building superintendent of an apartment building adjacent to a Standard service station in the 1600 block of West Wisconsin avenue in Milwaukee, observed two men who were strangers to him walk down a private sidewalk between the apartment building and the service station. They paused for a few moments by a well-lighted stairwell which they used as a toilet and then disappeared from Tuller's sight behind the building. When the men returned about two minutes later, they were rolling three tires down the private sidewalk toward Wisconsin avenue. Tuller observed the men reach the street and begin loading the tires into the trunk of a waiting automobile. He then called the police, who arrived on the scene while the men were loading the last tire.
The private sidewalk is located between the apartment building and the service-station premises, extends to a side entrance to the building, and is maintained for use of the apartment tenants. The sidewalk is east of the building. On the east side of the sidewalk is a four-foot fence which separates the two properties. The sidewalk is atop a 10-foot wall, as one looks from the service station which is lower than the building level. Thus, the top of the fence is four feet from the sidewalk and building level but 14 feet from the service-station level.
Atlas tires are piled against the wall and fence in stacks of 14, which extend from the rear of the premises nearly to the street. The height of a stack of tires is about 12 feet.
When the police officers were summoned to the scene they approached from the east. As they neared the apartment building and the service station they observed two men placing a tire in the trunk of a parked car. When the men saw the squad car approach, they dropped the trunk lid and began walking west on Wisconsin avenue, away from the police and the service station. The motor of the car was running.
The police officers stopped the men almost immediately and questioned them about the ownership of the car. Both were confused and evasive. One man said he had borrowed the car from a friend, but on further inquiry he was unable to give his friend's name. The other man, plaintiff in error, said he had only come along with the other man for the ride.
On inquiry into their reason for being in the neighborhood at that hour, plaintiff in error said they had come to buy tires. However, they were unable to indicate for whose car the tires were to be purchased, and their car was parked in front of the apartment building — not in close proximity to the station or other place where tires were sold.
At about this time one of the officers lifted the trunk lid which was unlocked. Inside were three new Atlas tires still in their wrappings. The officers decided to take the men to the Standard station to see if they had purchased or arranged to purchase the tires there. The attendant testified that the men had not bought the tires at that station, nor had they inquired about prices as they had claimed. The plaintiff in error reached for his wallet, asked the price of the tires, and offered to pay for them. After these conversations the men were arrested.
Before they were taken to the police station the plaintiff in error attempted to escape through the window of the service-station washroom. He was noticed partially out of the window and was returned to custody.
An inspection of the general area revealed three other new Atlas tires of the same size and description as those found in the trunk. These were also wrapped in their original wrappings and were found on the private sidewalk leaning against the west side of the fence. Both men denied any knowledge of these tires.
The service station's perpetual inventory revealed that six new Atlas tires of the same size and description as the six in question were missing. The value of each tire was $19, exclusive of tax.
The men were taken to the Safety Building where an arrest warrant was issued which was signed by a deputy clerk of court.
Plaintiff in error was charged in one information with attempted theft of six tires in violation of secs. 943.20 and 939.32, Stats. He pleaded not guilty and was tried before the court.
Counsel for plaintiff in error made no motion to suppress evidence prior to the trial, nor did he object to the invalidity of the warrant. He did object to questions asked one of the arresting officers concerning what he had been told by the radio dispatcher. These objections based on hearsay were sustained. When the state had completed its case, counsel moved "to dismiss the action on the ground that the evidence taken and received from his car was seized without lawful authority." The motion was denied and plaintiff in error was adjudged guilty. He was sentenced to an indeterminate term of two years since the value of the six tires was over $100.
The issues presented in this case are whether the police indulged in an unreasonable search and seizure, whether there was sufficient evidence to support the conviction, and whether the defect in the warrant compels a new trial.
The federal and the Wisconsin constitutions protect against unreasonable searches and seizures in substantially identical provisions. Therefore, the decision in Mapp v. Ohio did not change the law in Wisconsin. That decision and others following it indicate that exclusion of evidence obtained in violation of the constitutional guaranties puts meaning into the Fourth amendment's right of privacy and restrains the police from being overzealous in law-enforcement activities. In determining whether the activities in question constituted an illegal search and seizure we must consider the purposes of the constitutional prohibitions. The federal and state constitutions prohibit only unreasonable searches and seizures. The right protected is the individual's right of privacy. If the search is not based upon probable cause or is otherwise unreasonable the penalty is exclusion of the evidence so obtained.
Sec. 11, art. I, Wis. Const.
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Sec. 11, art. I, Const.
(1961), 367 U.S. 643, 81 Sup. Ct. 1684, 6 L.Ed.2d 1081.
See Barnes v. State (1964), 25 Wis.2d 116, 120, 121, 130 N.W.2d 264.
In determining what constitutes an unreasonable search and seizure we must also consider the peculiar facts and circumstances presented in each case. It is undisputed that the search was made without warrant and not as incident to a valid arrest. In such a situation a search is valid only if such "exceptional circumstances" exist as will on balance mitigate the requirement that a warrant be obtained.
Ker v. California (1963), 374 U.S. 23, 33, 83 Sup. Ct. 1623, 10 L.Ed.2d 726; Rios v. United States (1960), 364 U.S. 253, 255, 80 Sup. Ct. 1431, 4 L.Ed.2d 1688; United States v. Rabinowitz (1950), 339 U.S. 56, 63, 70 Sup. Ct. 430, 94 L.Ed. 653.
(1948), 333 U.S. 10, 14, 15, 68 Sup. Ct. 367, 92 L.Ed. 436, quoted in Hemmis v. State (1964), 24 Wis.2d 346, 351, 352, 129 N.W.2d 209. See also United States v. Jeffers (1951), 342 U.S. 48, 72 Sup. Ct. 93, 96 L.Ed. 59; McDonald v. United States (1948), 335 U.S. 451, 69 Sup. Ct. 191, 93 L.Ed. 153.
"There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case. No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, . . ."
Unlike the Johnson Case, the exceptional circumstances justifying the search are present here. The search was of an automobile. It is well settled that this is a significant factor.
Preston v. United States (1964), 376 U.S. 364, 84 Sup. Ct. 881, 11 L.Ed.2d 777; Brinegar v. United States (1949), 338 U.S. 160, 69 Sup. Ct. 1302, 93 L.Ed. 1879; Carroll v. United States (1925), 267 U.S. 132, 45 Sup. Ct. 280, 69 L.Ed. 543.
"Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar."
Preston v. United States, supra, at pages 366, 367, footnote 7.
There was a great risk that the contraband and the suspects themselves would leave the area if the police were to seek a warrant. The motor of the car was running; the last tire in sight was loaded just as the police arrived; it was 3:15 a.m. — a time when no magistrate is available. Prompt police action in such a situation is necessary, not unreasonable. The police are to be complimented for speedy, efficient law enforcement which apprehends criminals in the very practice of their activities.
See Ker v. California, supra, footnote 5.
These exceptional circumstances and the facts that the officers had been summoned to the scene, that they had observed the suspects place one tire into the trunk, that the suspects were evasive upon questioning, and that their car was some distance away from the service station where they claimed they were purchasing tires make the search reasonable in the first instance.
The tires were not seized until after the suspects had been arrested. There being no contention that the arrest was invalid, we need not consider the validity of the seizure.
We must now consider whether the search conducted transgressed the bounds of reasonableness. There is nothing in the search under the circumstances to taint it with unreasonableness. The search consisted of raising the lid of an unlocked automobile trunk and looking at the contents. This is quite different from a forceable entry to premises. It is quite a different invasion of the right of privacy protected than an entry into a man's bedchambers. It is quite different from a search of a man's person.
We conclude that the search was lawful in the first instance and was not effected in an unlawful manner under all the facts and circumstances involved.
Plaintiff in error contends that no probable cause to search the automobile was presented at trial. The record is barren of what Tuller told the officer who talked to him on the telephone. The record is also barren of what the police radio dispatcher told the investigating officers. Of course, this is because counsel for plaintiff in error objected to inquiries on these subjects on the basis of hearsay, and because when the state presented its case it had no reason to suspect that probable cause for the search would be an issue. Counsel at no time moved to suppress the evidence before trial nor did he object to the testimony of the search, but moved to dismiss after the state's case was in on the ground that the evidence was seized invalidly. The trial court treated this motion as a motion to suppress and denied it because he found probable cause for the search. We agree with the court's determination for the foregoing reasons but note that the motion may be considered untimely, and the objection waived.
"Defenses and objections based on . . . the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived. But the trial court may, in its discretion, entertain such motion at a later stage of the trial, in which case the defendant waives any jeopardy that may have attached. A motion to suppress evidence shall be so entertained, with waiver of jeopardy, when it appears that the defendant is surprised by the state's possession of such evidence."
We have considered this question in State v. Hoyt where we said, "It may well be that the court's ruling could be sustained solely on the ground that the objection was untimely." Since the trial court elected to entertain the motion as a motion to suppress, we sustain the denial of the motion on a finding of probable cause to search in accordance with the trial court's decision.
(1964), 21 Wis.2d 284, 296, 128 N.W.2d 645.
State v. Hoyt, supra, at page 296, footnote 11.
Plaintiff in error argues that the state did not prove its case beyond a reasonable doubt insofar as the three tires found against the fence are concerned. The total number of tires involved in an attempted theft becomes important because in theft and attempted theft the value of the property controls the maximum sentence that can be imposed. Conviction as to those three tires is based entirely on circumstantial proof. We have discussed the question of conviction by circumstantial evidence alone at length on several occasions.
"(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property. . . .
"(a) If the value of the property does not exceed $100, a fine of not more than $200 or imprisonment for not more than 6 months or both.
"(b) If the value of the property exceeds $100 but not $2,500, a fine of not more than $5,000 or imprisonment for not more than 5 years or both."
"Sec. 939.32 ATTEMPT. (1) Whoever attempts to commit a felony or a battery as defined by s. 940.20 or theft as defined by s. 943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; . . ."
"The evidence against him is entirely circumstantial, but this is not unusual in a criminal case. Not many criminals are caught in the act like a child with his hand in the cooky jar. Circumstantial evidence may be and often is stronger and as convincing as direct evidence. The same rule of the burden of proof in a criminal case applies to circumstantial evidence as to positive, direct evidence; and in both cases the evidence must be sufficiently strong and convincing to establish the facts of guilt beyond a reasonable doubt in the mind of the trier of the facts. Circumstantial evidence has its inherent defects but human testimony, too, has its infirmities. A notion exists that all circumstantial evidence should be viewed with distrust because it can establish, at most, only a possibility of guilt. Such an opinion, based on the theory that circumstantial evidence can only be the basis for conjecture and is impotent to correctly indicate or to satisfactorily establish the facts upon which guilt must rest to the required degree of certainty, is unwarranted. It is true that circumstantial evidence in many cases may be so weak as not to meet the standard of proof. But circumstantial evidence may be and often is stronger and more satisfactory than direct evidence; Schwantes v. State (1906), 127 Wis. 160, 106 N.W. 237, and Spick v. State (1909), 140 Wis. 104, 121 N.W. 664, which discuss the subject at length."
State v. Johnson (1960), 11 Wis.2d 130, 134, 135, 104 N.W.2d 379, quoted with approval in Hemmis v. State (1964), 24 Wis.2d 346, 353, 354, 129 N.W.2d 209.
Plaintiff in error argues that the tires were never properly identified. However, the service station inventory disclosed a shortage of six Atlas tires of the same size and description as the six here in question. All six tires were in their original wrappings. We hold the identification sufficient.
The three tires found leaning against the fence were found on the apartment building's private sidewalk. Just across that fence was the service-station premises where other tires were piled. The men were identified and observed walking on that sidewalk from Wisconsin avenue to the rear of the building where they disappeared from sight. They returned rolling three tires. They were not tenants of the building, nor did they have any apparent business in the building. The inspection of the premises revealed the three tires remaining against the fence. Plaintiff in error has suggested no reasonable alternative to the inferences drawn by the court that the two suspects reached over the fence (about two feet), took the tires from their piles, placed them against the fence, and would have returned for them had they not been interrupted so quickly by the police. Suppositions to the contrary not founded in the evidence are not reasonable inferences.
On review the test to be applied is "whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt." This test is equally applicable where trial has been to the court.
State v. Johnson, supra, at page 137, quoted with approval in State v. Stevens (1965), 26 Wis.2d 451, 463, 132 N.W.2d 502, and State v. Waters (1965), 28 Wis.2d 148, 153, 135 N.W.2d 768.
Plaintiff in error put in no case of his own. Under the test to be applied we hold that the evidence produced was sufficient to prove guilt beyond a reasonable doubt. The acts went beyond mere preparation to commit a crime and were well enough along to run afoul of the prohibition of attempted theft. The men needed only to return and to take the tires, which had been secreted, into final possession to complete the theft.
Finally, plaintiff in error contends for the first time on appeal that the arrest warrant, which was issued after the men had been arrested and taken to the Safety Building, was defective. As we have determined that the search without warrant was legal, then the arrest was legal. The question of the validity of an arrest warrant issued later is then moot. Plaintiff in error has not attacked the validity of the arrest without warrant.
However, even if that question were in issue here, plaintiff in error has waived his right to raise it. He did not object to the warrant or the court's jurisdiction, but pleaded and went to trial. We held in State ex rel. La Follette v. Raskin that the issue of jurisdiction, to which the warrant runs, is waived when not raised before pleading to the information.
Ante, p. 39, 139 N.W.2d 667.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


In connection with any actual or possible conflicts of interest, an interested person must disclose the existence of his or her financial interest and must be given the opportunity to disclose all material facts to the directors and members of committees with board delegated powers considering the proposed transaction or arrangement.
c. After exercising due diligence, the board or committee shall determine whether the Corporation can obtain a more advantageous transaction or arrangement with reasonable efforts from a person or entity that would not give rise to a conflict of interest.
d. If a more advantageous transaction or arrangement is not reasonably attainable under circumstances that would not give rises to a conflict of interest, the board or committee shall determine by a majority vote of the disinterested directors whether the transaction or arrangement is in the Corporation’s best interest and for its own benefit and whether the transaction is fair and reasonable to the Corporation and shall make its decision as to whether to enter into the transaction or arrangement in conformity with such determination.
1. the names of the persons who disclosed or otherwise were found to have a financial interest in connection with an actual or possible conflict of interest, the nature of the financial interest, any action taken to determine whether a conflict of interest was present, and the board’s or committee’s decision as to whether a conflict of interest in fact existed.
1. A voting member of the board of directors who receives compensation, directly or indirectly, from the Corporation for services is precluded from voting on matters pertaining to that member’s compensation.
2. A physician who is a voting member of the board of directors and receives compensation, directly or indirectly, from the Corporation for services is precluded from discussing and voting on matters pertaining to that member’s or other physicians’ compensation. No physician or physician director, either individually or collectively, is prohibited from providing information to the board of directors regarding physician compensation.
3. A voting member of any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Corporation for services is precluded from voting on matters pertaining to that member’s compensation.
4. Physicians who receive compensation, directly or indirectly, from the Corporation, whether as employees or independent contractors, are precluded from membership on any committee whose jurisdiction includes compensation matters. No physician, either individually or collectively, is prohibited from providing information to any committee regarding physician compensation.
d. understands that the Corporation is a charitable organization and that in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of its tax-exempt purposes.
a. Whether compensation arrangements and benefits are reasonable and are the result of arm’s-length bargaining.
b. Whether acquisitions of physician practices and other provider services result in inurement or impermissible private benefit.
c. Whether partnership and joint venture arrangements and arrangements with management service organizations and physician hospital organizations conform to written policies, are properly recorded, reflect reasonable payments for goods and services, further the Corporation’s charitable purposes and do not result in inurement or impermissible private benefit.
d. Whether agreements to provide health care and agreements with other health care providers, employees, and third party payors further the Corporation’s charitable purposes and do not result in inurement or impermissible private benefit.
In conducting the periodic reviews provided for in Article VII, the Corporation may, but need not, use outside advisors. If outside experts are used their use shall not relieve the board of its responsibility for ensuring that periodic reviews are conducted.
1. EOTR Weekly, Vol. 9, No. 13, march 30, 1998, page 1.
§ 4940 — 2% tax on net investment income; this may be reduced to 1% if a sufficient amount is donated to qualified charities.
§ 4941 — 5% tax on any disqualified person participating in an act of self dealing; 2.5% on the foundation manager.
§4942 — 15% tax on undistributed income that should have been distributed during the year (must distribute 5% of FMV of assets).
§4943 — 5% excise tax on excess business holdings (20% – or 35% if the foundation does not control the entity, less the % held by a disqualified person).
§4944 — 5% excise tax on jeopardizing investments.
§4945 — 10% tax on foundation, 2.5% tax on foundation manager on amounts paid that are not in furtherance of the exempt purposes (taxable expenditures). Grants by private foundations to individuals (scholarships) must be awarded on an objective and nondiscriminatory basis, with the procedure approved beforehand by teh IRS, to avoid a taxable expenditure classification. See Rev. Proc. 76-47 (1976-2 C.B. 670).
3. Exempt Organization Tax Review, November, 2000, Vol 30, No. 2, p. 166-8.
4. Exempt Organization Tax Review, September, 2000, Volume 29, No. 3, p. 398-9.
5. Exempt Organization Tax Review, October, 2000, Volume 30, No. 1, p. 16.
6. Henry Haalilio Peters v. Comm’r, Tax Ct. Dkt. No. 8446-00, reported in Exempt Organization Tax Review, November, 2000, Volume 30, No. 2, p. 204.
8. Unless it is excludable as a de minimis fringe benefit, a payment of liability insurance premiums for or the payment or reimbursement by the organization will be included in compensation if said payment or reimbursement is: (i) of any penalty, tax or expense of correction owed as a result of an excess benefit payment, or (ii) is of unreasonable expenses incurred in a civil judicial or civil administrative proceeding arising out of the person’s performance of services on behalf of the exempt organization, or (iii) is an expense resulting from the person’s willful and unreasonable act or failure to act. Reg. § 53.4958-4T(b)(1)(ii)(B)(2).
10. See EOTR, Vol. 27, No.2, February 2000, page 317 for complete list of these cases.
11. Exempt Organization Tax Review, November, 2000, Volume 30, No. 2, p. 126.
12. See discussion in EOTR Weekly, Vol. 10, No. 9, June 1, 1998, p. 1-2.
13. For an historical review of this area, see “Joint Ventures With For-Profits After Revenue Ruling 98-15”, by ___________________, EOTR, March, 2000, Volume 27, No. 3, p. 441, et. seq.
14. See EOTR, November, 2000, Vol 30, No.2, p. 164.
15. The Exempt Organization Tax Review, January 2000, Vol. 27, No. 1, p. 21.
16. EOTR Weekly, Vol. 20, No. 2, 10/9/00, p. 9.
19. See also South End Italian Independent Club, Inc., v. IRC, 87 T.C. No. 11 (7/22/86) and Women of the Motion Picture Industry, et. al. v. IRC, T.C. Memo 1997-518.
21. EOTR Weekly, 11/6/00, Vol 20, No. 6, p. 36.
24. See Volume 26, No. 3, The Exempt Organization Tax Review, page 362 (December, 1999).
25. EOTR Weekly, Vol. 16, No. 11, December 13, 1999, page 2.