
    State, Respondent, v. Johnson, Appellant.
    
      June 7-June 28, 1960.
    
    
      The cause was submitted for the appellant on the brief of Robert D. Martinson, attorney, and Immell, Herró, Buehner & DeWitt, all of Madison, and for the respondent on the brief of John W. Reynolds, attorney general, William A. Plats, assistant attorney general, and John R. Dickerson, district attorney of Vilas county.
   PIallows, J.

The defendant did not testify or offer any testimony and relies on his presumption of innocence and his claimed insufficiency of the evidence. 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. The companion view that to justify a conviction on circumstantial evidence it is necessary to exclude every possible hypothesis of innocence has been criticized as erroneous by Wharton, Criminal Evidence (9th ed.), p. 12, sec. 10, and by this court in Schwantes v. State and Spick v. State, supra.

Cases cited by the defendant do not hold otherwise. Kollock v. State (1894), 88 Wis. 663, 60 N. W. 817, states the principles applicable to circumstantial evidence to be: 1. That each of the several circumstances upon which the conclusion of guilt necessarily depends must be proved beyond a reasonable doubt; and 2. they must not only point with moral certainty to the guilt of the defendant, but must exclude to a moral certainty every other reasonable hypothesis. The rule does not require the exclusion of all other possible hypotheses or even probabilities, but only reasonable hypotheses of innocence.

Moral certainty is a reasonable certitude or conviction based on convincing reasons and excludes all doubts that a contrary or opposite conclusion can exist based on any reasons. One having such a state of mind is said to be convinced beyond a reasonable doubt. Such state of mind is more than an opinion, or an ordinary conviction. It is a higher state of conviction called moral certitude, which is the firm assent of the mind to one of two contraries without any reasonable fear of error, i.e., beyond a reasonable doubt. In criminal cases such moral certainty is not of the absolute or metaphysical order, in which the opposite conclusion is objectively an absolute impossibility as, for example, the arithmetical truth that two plus two makes four; and need not be as absolute as the truths based on the physical laws of nature. The type of reasonable certitude required in criminal cases is moral certainty relating to the affairs of human conduct and grows out of informed experience with the common ways (mores) of man. It is based upon the certain constancy and uniformity in the free conduct of humans under given conditions or motives. Based upon long experience with the actions and motives of human nature, certain inferences of conduct may be drawn from various circumstances to a moral certainty. This is not to say that exceptions and possibilities may not exist but such possibilities in themselves do not prevent a person from forming a reasonable conviction beyond a reasonable doubt or to a moral certainty of the truth of a fact. This degree of certainty required to sustain a criminal conviction may be attained upon circumstantial evidence as well as upon direct evidence.

Such is the meaning of the language in Colbert v. State (1905), 125 Wis. 423, 104 N. W. 61, cited by the defendant, that all the facts necessary to warrant a conviction on circumstantial evidence must be consistent with each other and with the main fact sought to be proved and the circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged; and of State v. Bradley (1954), 267 Wis. 87, 64 N. W. (2d) 187, citing the Kollock Case, supra. The defendant relies on the language in State v. Hall (1955), 271 Wis. 450, 73 N. W. (2d) 585, wherein the court, after quoting from the Schwantes Case, supra, stated (p. 453) : “ ‘. . . circumstantial evidence must be sufficiently strong to exclude every reasonable theory of innocence’ ” applied the rule and stated (p. 453) : “It is not enough that the evidence is consistent with the state’s hypothesis of guilt; it must be inconsistent with any hypothesis of innocence.” The omission of the word “reasonable” before hypothesis was not meant to change the rule so as to require the evidence to exclude an unreasonable hypothesis of innocence or a mere possibility thereof.

The trial judge found he was convinced of the defendant’s guilt beyond a reasonable doubt. On this appeal it is our duty to determine whether the circumstantial evidence is sufficient to sustain the finding of the trial court. State v. Schweider (1959), 5 Wis. (2d) 627, 94 N. W. (2d) 154. This court does not retry the case on the facts in the record to determine if each of its members is convinced of the defendant’s guilt beyond a reasonable doubt. An appellate court cannot function as a trial court or as a jury. Its duty and right is to determine whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt. State v. Hanks (1948), 252 Wis. 414, 31 N. W. (2d) 596; Parke v. State (1931), 204 Wis. 443, 235 N. W. 775, and cases cited therein. See also State v. John, ante, p. 1, 103 N. W. (2d) 304. The rule is no different when the trial court is the trier of the facts. State v. Evjue (1949), 254 Wis. 581, 37 N. W. (2d) 50.

There is no question that both the Struck and the Mitchell filling stations were burglarized. Both front doors were jimmied with an instrument leaving marks as if a screw driver had been used. Entrance to Mitchell’s station, however, was finally gained through a side window where the blue paint was scuffed. The question is, Did the defendant commit the burglaries? Struck identified the screw driver, the four-way wheel wrench and the tire iron found in the defendant’s car and the tires found at the cottage as his and as being missing from his filling station immediately after the burglary. The sufficiency of the identification is challenged. The screw driver was positively identified by the way the end was worn down, the four-way wrench by a bent arm, and the tire iron as a “Craftman” make with its end pounded over. The tires were identified by size, quality, and brand name. Struck kept no record of the tire serial numbers and therefore could not identify the tires by that method. True, these identifications were not as positive as personalized monograms on the tools would have made them; and they might not distinguish the tools from every existing tool of the same class. Such an absolute degree of proof is not required to determine property as one’s own. But, if this witness can be believed and there is no evidence even tending to show why he should not be, such identification based on similarities of distinguishing features was sufficient in view of the other circumstances. Fowle v. State (1879), 47 Wis. 545, 2 N. W. 1133. The same may be said of the new tires found hidden at the cottage occupied by the defendant. Mitchell positively identified a screw driver found in the defendant’s car as one he purchased from Arnold Grubel and as being a “snap-on tool” nicked on the edge by one of his helpers while pounding out a wheel bearing. Mitchell had used the screw driver many times and it was the type used by garage repairmen and was stained with oil and grease.

The four new batteries, two 12-volts and two 6-volts, were sufficiently identified by witness Seifert as his by make, model number, the type of caps, and three being dry batteries and one being a wet battery. One windshield wiper in a carton was identified as a winter-type wiper with the price mark on the box in Seifert’s handwriting. The batteries and wipers proved nothing as to the guilt of the defendant in the Struck and Mitchell burglaries except that the property was stolen and found at the cottage occupied by the defendant where stolen tires involved in the Struck burglary were found. The defendant was not convicted of larceny or the related burglary involving the batteries and the windshield wipers on this evidence and correctly so. The defendant’s control of the cottage was not so exclusive as to raise any inference of guilt from his possession of stolen property. But it is of some importance and part of the circumstances on the Struck larceny count that the stolen tires from the Struck service station were found at the cottage.

Mere possession of stolen property raises no inference of guilt, but Wisconsin from early times has followed the rule that unexplained possession of recently stolen goods raises an inference of greater or less weight, depending upon the circumstances, that the possessor is guilty of the theft and also of burglary if they were stolen in a burglary. Such inference being in the nature of a presumption of fact calls for an explanation of how the possessor obtained the property. Such presumption is not conclusive and may be rebutted. Graves v. State (1860), 12 Wis. 659 (*591); State v. Snell (1879), 46 Wis. 524, 1 N. W. 225; Ryan v. State (1892), 83 Wis. 486, 53 N. W. 836. In Ingalls v. State (1880), 48 Wis. 647, 4 N. W. 785, it was pointed out that the nature of the possession of the stolen goods is important, whether it is open and unconcealed and whether the goods are such as the person found in possession thereof would probably be possessed of in an unlawful way. This is what is meant by an inference of greater or less weight depending upon the circumstances. The rule of unexplained possession of recently stolen goods has been followed and discussed in Winsky v. State (1905), 126 Wis. 99, 105 N. W. 480; Montello v. State (1922), 179 Wis. 170, 190 N. W. 905; Vejih v. Redford (1923), 182 Wis. 311, 196 N. W. 228.

The defendant does not contest the correctness of this rule and admits in his brief that if no explanation had been made by him, the inference arising from unexplained possession of stolen articles (assuming sufficient identification) would be sufficient to support his conviction of the burglaries and the larcenies. However, the defendant claims he made an explanation which the state’s evidence was not sufficient to prove false. The defendant stated to the arresting officer that the screw drivers, tire iron, and four-way wheel wrench were in his car when he purchased it from the Phelps Auto Company. This statement was not given under oath and no explanation by the defendant was made at the trial. Witness Arnold Grubel testified he took the defendant to Phelps, Wisconsin, in June, 1958, and that the 1951, 88 Olds, four-door sedan which the defendant purchased that day was the one Grubel saw the defendant driving a few hours before his arrest. Grubel also testified that one night, probably in July, when he was driving the defendant to the cottage in the defendant’s Olds, a tire went flat and the only tools the defendant had in the car at that time were an L-shaped tire iron and a jack.

If the defendant was not driving the 1951 Olds he purchased in June, then for his unsworn explanation to be true, one would have to assume the criminal who burglarized the Struck and Mitchell stations put the stolen tools in a 1951, 88 Olds, four-door sedan and sold the car almost immediately after the burglary to the Phelps Auto Company and the defendant on the same day or the following day purchased the car from the Phelps Auto Company. By some coincidence the thief’s car would have to have been a seven-year-old 1951, 88 Olds, four-door sedan the same year, make, and model as the one the defendant bought some three months before. Such an hypothesis is not reasonable or credible. This possibility or hypothesis is actually not claimed by the defendant as he never stated when but only where he purchased the Oldsmobile he was driving at the time of his arrest. The vague and unsworn explanation of the defendant does not rebut the presumption arising from his exclusive possession of stolen property.

As additional evidence supporting the presumption of guilt, the falsity and the weakness of the explanation could be considered. Fowle v. State, supra. Under the Ingalls Case, supra, the court could also consider that an ordinary citizen does not normally have five screw drivers under the front seat of his car, that some of the tools were of the type generally found in public garages and not ordinarily in private cars, and part of the fruits of the Struck burglary —the two Mobil tires — was found hidden in the crawl space under the cottage occupied by the defendant, along with other stolen batteries, one of which was wrapped in burlap and placed inside a tire. While these facts and circumstances, standing alone, are not sufficient to prove guilt, they are suspicious and of an incriminating nature and may be considered in view of the other circumstances. Vejih v. Redford, supra.

The trial court correctly held that no inference as to burglary arose from the possession of the tires, the windshield wipers, and the batteries because they were not proved to be within the exclusive possession of the defendant at the cottage. There was some evidence of other persons staying at the cottage for short periods of time in July and August. Likewise, the Oxfords with the blue paint were not sufficient evidence, although there was some evidence they were used in the Mitchell burglary but it was not proved that the shoes belonged to the defendant. However, when the burglary and the articles stolen therein are proved and part of the loot or fruits of the burglary is found in the unexplained and exclusive possession of the accused, it is not required that the rest of the fruits of the burglary must be in his exclusive possession to sustain the conviction of larceny therefor.

The written decision of the trial judge shows he carefully considered the evidence and gave the defendant the benefit of every doubt and presumption to which he was entitled. The defendant pleaded not guilty and chose to stand on his presumption of innocence and on what he considered the weakness of the state’s evidence against him. This he had a right to do and no inference of guilt should or may be drawn. However, the circumstantial evidence was sufficiently strong and credible to convince the trial court beyond a reasonable doubt of the defendant’s guilt on four counts and in our judgment was sufficient to sustain the finding of the trial court.

By the Court. — Judgment affirmed.

Dieterich, J.

(dissenting). The defendant appeals from a conviction on two counts of burglary and two counts of theft. The trial was had to the court without a jury and neither the defendant nor any witnesses in his behalf testified at the trial. The objections presented upon appeal can be resolved into one issue: Does the evidence in the record sustain the convictions on the four above-mentioned counts of burglary and theft?

The defendant was charged with the following offenses:

(1) Burglary of the Walter Richmond premises in the city of Eagle River on or about August 24, 1958. Court found defendant not guilty.
(2) Burglary of the Harry Seifert Standard Oil station in the town of Conover, Vilas county, on August 26, 1958. Windshield-wiper blades and four batteries were stolen from said premises on said occasion. Court found defendant not guilty.
(3) Burglary of the Glen Struck Service station in the town of Conover, Vilas county, on August 31, 1958. Found guilty.
(4) Theft of a screw driver, four-way tire wrench, tire iron, and two auto tires from the Struck Service station and $7 in cash. Found guilty.
(5) Burglary of the Henry Mitchell Service station in the town of Land O’Lakes, Vilas county, on September 2, 1958. Found guilty.
(6) Theft of $45 in cash and a screw driver from the Mitchell Service station. Found guilty.
(7) Burglary of the L & K Sinclair station in Eagle River on August 23, 1958. Found not guilty.
(8) Theft of $50 in cash from the L & K Sinclair station. Found not guilty.

The following statutes are involved in this appeal:

Sec. 943.10 “Burglary. (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than ten years':
“(a) Any building or dwelling; . . .”

Sec. 943.20 “Theft. (1) Whoever does any of the following may be penalized as provided in sub. (3) :

“(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.”

This case is based solely on circumstantial evidence. It is recognized that most cases of burglary rest, to a very great extent, if not solely, on circumstantial evidence. This is so since persons so plying this course of nefarious conduct do not do so under the obvious scrutiny of potential witnesses, at least not intentionally; on the secrecy of their actions and usually the mantle of darkness depends the success of their operations.

While recognizing this situation resulting in the sometimes enormous difficulty of apprehension of these criminals by law-enforcement agencies, we must never lose sight of the “cloak of innocence” which every person carries who is prosecuted for crime. Every person is presumed to be innocent until his guilt is proved beyond a reasonable doubt. It is not for the accused to prove his innocence. In fact, the accused need offer no defense. The evidentiary facts propounded by the prosecution must be sufficient in themselves to prove guilt beyond a reasonable doubt.

These principles apply to all men, in all circumstances. It is not the function of a court in criminal proceedings to determine whether a person, because of previous conduct, or any other reason, should be withdrawn from society. Rather, it is the function of the judiciary, within its limits of fallibility, to determine whether the facts, as adduced, including inferences which may be reasonably drawn therefrom, prove beyond a reasonable doubt that the accused is guilty of the crime charged in all its elements and therefore should forfeit his freedom.

It is a matter of the gravest importance whenever the question of the freedom of an individual is to be decided upon. The denial of such freedom by reason of conviction of a crime necessarily places a high burden of proof on those seeking to curtail that freedom. That burden should not be an unreasonable one since the protection of citizens in a society also merits careful consideration. As a result, where a crime has been committed unseen by witnesses and hence unprovable by direct, positive evidence, the law recognizes that guilt may be proved solely by circumstantial evidence.

However, where such proof of guilt rests solely and entirely upon circumstantial evidence (as is admitted this case does), such proof must be of such a convincing quality that a reasonable person would exclude, to a moral certainty, any other reasonable explanation of such facts inconsistent with the guilt of the accused.

The defendant was found guilty of the burglary of the Struck Service station and the theft of a screw driver, four-way tire wrench, tire iron, two auto tires, and $7 in cash. This conviction depends on (1) the identification of the items listed as the property of Mr. Struck, and (2) proof of entry of Struck’s station by the defendant. After testifying as to a burglary of his station on August 31, 1958, the following questions were asked Mr. Struck and he made the following answers:

,cQ. Now, I show you state’s Exhibit 1, and ask you what it is? A. A screw driver.
"Q. You recognize it? A. Yes, I do.
"Q. How do you recognize it? A. By this end here. The way it is worn. It is the one I had.
“Q. You know whether or not it is your screw driver? A. It is very similar to the one I had . . .
“Q. I show you state’s Exhibit 2, and ask you what that is? A. A four-way tire wrench.
“Q. Did.you recognize or identify that? A. Well, it is very similar to the one I had. . . .
“Q. Well, are there any other marks upon that you can use to identify that as yours? A. No, there is no other. . . .
“Q. I show you state’s Exhibit 3, and ask you what that is? A. That is a tire iron. . . .
“Q. Can you recognize that as belonging to you? A. Uh-huh.
"Q. How do you recognize it? A. Well, it is very similar the way that end is pounded over here, like the one I had (indicating). ...
“Q. Have you any other tire irons there to use? A. Well, one similar to this but it is bent up. . . .
“Q. And look at Exhibit 13, and tell the court, describe that tire to the court? A. 67 — 15 Mobil Deluxe tire.
“Q. Had you purchased that tire from Mobil? A. Yes.
“Q. Will you look at Exhibit 14, and describe that to the court? A. 760-15, Mobil Super Deluxe.
“Q. Are you able to identify that as yours? A. Just by brand name.
“Q. There isn’t any particular markings on there? A. I had markings on there, they are off. The labels were marked but they are off.
“Q. Examine them closely to see if there are any marks you could identity? The Court: Don’t those tires have serial numbers? A. Yes, sir. . . .
“Q. You have your invoice here? A. Invoice doesn’t show.
“Q. (By the Court) You are not able to tell the court the serial numbers of the tires taken from your place? A. No I am not.” (Emphasis supplied.)

Mr. Struck, in his testimony, claims ownership. However, his claim of ownership is based solely upon similarity and not objective certainty.

On the basis of the foregoing testimony, I cannot conclude that any of the items were positively identified. Nor can I conclude that such identification based on similarities of distinguishing features was sufficient. In Fowle v. State (1879), 47 Wis. 545, 2 N. W. 1133, cited by the majority, the distinguishing characteristics of the stolen sheep in three particulars corresponded precisely with the description of property sold by the defendant. This is certainly not the situation in the case before us.

Mr. Arnold Grubel, a tavernkeeper at Land O’Lakes, testified:

“Q. Were you ever with him when he had any tire trouble? A. Just this one night that I drove him home we had a flat tire on the way, and with his wrench I couldn’t take off the nuts, or the nuts were rusted, and the next morning I brought him out a tire wrench. . . .
“Q. I show you state’s Exhibit 3, and ask you whether or not that was the tire iron he took out of the car that night that you were unable to use? A. I was going to change it myself, and the lugs were too tight and he had one of these ‘L’ things and it was bending and I could not break the nut with that so he stayed in the car all night as it was raining. The next morning I went out and took a wrench out to him and we changed the tire for him.
“Q. He didn’t have any tire wrench in the car that night? A. No.
“Q. Did you look in the trunk of his car that night in connection with changing that tire? A. Only to take out his jack and tire wrench.
“Q. Did he have any other tools other than the ‘L’ lug wrench you have mentioned and the jack? A. Not that I noticed.”

Mr. Grubel’s testimony is that he took out of the trunk of the car the jack and “L” tire wrench. He also testified that it was raining and that he did not notice whether there were any other tools in the trunk of the car.

Mr. Arthur Yahr, owner of the Phelps Auto Company, testified that the defendant George Johnson purchased the 1951 Oldsmobile June 27, 1958. He was asked:

“Q. Did you prior to selling Johnson this car, did you know what was in it? A. No.
“Q. In the way of tools? A. No, I really don’t. I really don’t. I never go through them. I haven’t the slightest idea what was in it. I mean I know we have five tires to them and never pay any attention to what tools are in the car whatsoever.”

The record further discloses that the Big Portage lake premises in which the defendant resided were occupied by many other persons including the landlord, relatives, and itinerant fisherman. In fact, its transient operation could more or less be compared with the Grand Central railroad station in New York City.

Regarding the testimony of Mr. Mitchell — he identified a screw driver because of an apparent battering that it had received on the end. There were no other distinguishing marks or features about the screw driver. This screw driver was found in defendant’s car with three other screw drivers which were not introduced into evidence and apparently had no connection with any of the crimes charged. This identification is far from positive.

While I do not doubt the sincerity of the witnesses as to their beliefs, I cannot determine that such an identification of a screw driver is of sufficient weight to support the convictions of burglary and larceny.

A careful examination of the record in this case leads me to conclude that the evidence and testimony do not measure up, either in quality or probative value, in order to meet the requirements of the well-established rule of law that no person shall be convicted of a penal offense unless the testimony be such as will sustain the rigid test of satisfying beyond a reasonable doubt.

In State v. Bradley (1954), 267 Wis. 87, 64 N. W. (2d) 187, where fragments found upon the clothing worn by the defendants on the night of the burglary as well as found on other articles taken from defendants’ car were identified with those taken from a safe which was stolen, this court affirmed the lower court’s dismissal upon the ground that the evidence did not point with moral certainty to the guilt of the defendants.

In Colbert v. State (1905), 125 Wis. 423, 436, 104 N. W. 61, this court stated the following to be a correct statement of the law:

“ ‘All the evidence produced by the state is circumstantial. There is no direct or positive evidence that the defendant committed the crime charged. And to warrant a conviction on circumstantial evidence each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and with the main fact sought to be proved, and the circumstances, taken together, must be of a conclusive nature, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged. The mere union of a limited number of independent circumstances, each of an imperfect and inconclusive character, will not justify a conviction. They must be such as to generate and justify full belief according to the standard rule of certainty. It is not sufficient that they coincide with and render probable the guilt of the accused, but they must exclude every other reasonable hypothesis. No other conclusion but that of the guilt of the accused must fairly and reasonably grow out of the evidence, but the facts must be absolutely incompatible with innocence, and incapable of explanation upon any other reasonable hypothesis than that of guilt.”

An examination of the learned trial court’s decision in the counts concerning the Mitchell Standard station would seem to indicate that the trial court, while stating that it did not consider the blue scuff mark on the filling-station window, or the blue marks on the shoes or the blue paint on the shoes because the shoes were not proven to be the shoes of the defendant, actually did consider this together with the possession of one screw driver and the officer’s testimony as to the defendant’s explanation as to how the screw driver came to be in the defendant’s car in order to conclude that the defendant burglarized the Mitchell Standard station.

The language of this court in Bruno v. State (1920), 171 Wis. 490, 497, 177 N. W. 610, is particularly apropos in this case:

“. . . we are nevertheless compelled in a case such as this, involving a crime of such a grave nature and in which the verdict of guilty by the jury was followed by punishment measured by a sentence of ten years’ imprisonment in the state prison, to feel the necessity of bearing steadfastly in mind the well-established rule of law that no person shall be convicted of a penal offense unless the testimony be such as will sustain the rigid test of satisfying beyond a reasonable doubt. [Emphasis supplied.] . . .
“The testimony in this case, in our judgment, when reasonably and fairly construed, creates no more than a suspicion that the defendant committed this offense. A suspicion merely is insufficient to support a judgment of conviction. Lonergan v. State, 111 Wis. 453, 460, 87 N. W. 455; State v. Vandewater (Iowa), 176 N. W. 883.”

Applying evidentiary facts in this case to the stated law, I must conclude that the evidence is of such an imperfect and inconclusive character, that it fails to meet the rigid test required to satisfy a court or jury that the defendant was guilty beyond a reasonable doubt of the crimes of burglary and larceny.

I am authorized to state that Mr. Justice Brown and Mr. Justice Currie join in this dissent.  