On July 25, 1969, Harold Elam, the plaintiff in error (hereinafter defendant), was convicted of burglary after a jury had returned a verdict of guilty. A presentence investigation was ordered and on September 2, 1969, the defendant was sentenced to an indeterminate term of not more than three years in prison consecutive to a sentence previously imposed. A writ of error was issued to challenge the judgment of September 2, 1969. A second writ of error was issued to review an order of the same court entered on September 8, 1970, denying the defendant's motion for postconviction relief brought pursuant to sec. 974.06, Stats.

Defendant and two accomplices were charged with a violation of sec. 943.10(1) (d), Stats., for the burglary of a truck belonging to Servomation of Wisconsin, Inc., a vending machine company, in Milwaukee on November 5, 1968. The truck was broken into, during daylight hours, while parked and locked but unattended. Cash and cigarettes were stolen. They were tried separately and all three were convicted and sentenced.

The defendant Elam's trial in this matter was originally scheduled before Judge WILLIAM I. O'NEILL for March 19, 1969. He had been incarcerated at Fox Lake by reason of revocation of probation on a previous narcotics conviction, and Judge O'NEILL ordered defendant to be brought to Milwaukee by March 15, 1969. The defendant had timely filed a notice of alibi on January 9, 1969, and subpoenas were issued for James Butcher and John Crowley, the alibi witnesses listed in the notice. Neither witness appeared on March 19th. However, defendant's trial was adjourned because the sheriff did not produce defendant until the date of trial, contrary to the direction of Judge O'NEILL.

On June 5, 1969, the case was transferred to Judge CANNON, and on June 10, 1969, trial was set for July 24, 1969.

On July 24, 1969, the date of trial, defendant's counsel advised the court that he had issued subpoenas for the two alibi witnesses on July 23d, the previous day, and that the sheriff was unable to serve them. He asked for an adjournment to enable him to locate the witnesses, and the motion was denied. The trial proceeded and the state called an eyewitness who was the only one who identified defendant as one of the participants in the burglary. The defendant did not put in any case after the state rested; the jury returned its verdict and the defendant was sentenced as set forth above.

The defendant was represented throughout the proceedings through September 2, 1969, by retained counsel.

By order dated December 16, 1969, this court appointed Attorney James R. Mattison to represent defendant in any postconviction proceedings. On March 9, 1970, defendant filed an order to show cause why he should not be granted a new trial pursuant to sec. 958.06, Stats. 1967, by reason of his being denied the right to present his defense, contrary to the sixth and fourteenth amendments to the United States Constitution. After a hearing on March 23, 1970, the motion was denied.

Subsequent to the denial of that motion, defendant's wife advised Mr. Mattison that she had learned that one Talmadge Edwards, who was incarcerated at Green Bay, was actually the third man involved in the burglary instead of her husband. In April of 1970, Mr. Mattison spoke with Talmadge Edwards, Robert Words (a codefendant who had also been convicted of the burglary involved here), and one Jerry Johnson at the reformatory. After a lengthy conference, Talmadge Edwards admitted that he in fact had committed the offense and that defendant was not involved. He further stated that he had confessed the offense to Milwaukee Police Detective Robert Schroeder, but that at the time of his trial the confession was not read into the record. He told Mr. Mattison that he would testify to these facts "if it would not affect his present situation."

Mr. Mattison then contacted Detective Schroeder who told him that Edwards had confessed to many unsolved crimes, but he could not remember his confessing to this burglary.

On or about July 3, 1970, Mr. Mattison again visited Talmadge Edwards and Robert Words and asked each to sign a statement under oath. They refused, stating that if they were subpoenaed they would testify only if they were granted immunity from further prosecution.

On August 10, 1970, defendant filed a second order to show cause why he should not be granted a new trial by reason of his being denied the right to present his defense, supported by the affidavit of Mr. Mattison setting forth the above facts and, in addition, that he had located one of the alibi witnesses, James Butcher, who was willing to testify in behalf of the defendant. Further, defendant sought the issuance of a writ of habeas corpus ad testificandum and the granting of immunity to Edwards and Words.

A hearing was held on August 18, 1970, and Edwards and Words were subpoenaed and sworn as witnesses. The court refused to grant them immunity and both refused to testify, pleading the fifth amendment. The trial court again denied defendant's motion.

On August 19, 1970, defendant requested issuance of a writ of error. A writ of error was issued directed to the judgment of sentencing entered on September 2, 1969, but defendant was advised that the time for appeal or writ of error from the judgment of conviction entered on July 25, 1969, had expired.

On September 1, 1970, defendant filed a motion for postconviction relief pursuant to sec. 974.06, Stats., alleging the same grounds discussed above. After a hearing on September 8, 1970, the trial court denied defendant's motion. A writ of error directed to the order denying this motion was issued on September 10, 1970.

BEILFUSS, J.

No question is raised concerning the propriety of the sentence imposed, and the arguments made on this writ of error relate solely to the issue of whether defendant should be granted a new trial.

Three questions are presented:

(1) Did the trial court abuse its discretion in denying defendant's motion for a continuance made on the day of trial?

(2) Did the trial court abuse its discretion in refusing to grant immunity from prosecution to Talmadge Edwards and Robert Words at the postconviction hearing?

(3) Should defendant be granted a new trial in the interest of justice pursuant to sec. 251.09, Stats.?

Defendant's first argument is that he was denied the right to present his defense at trial in that he was not afforded the benefit of compulsory process to compel the attendance of his alibi witnesses. In view of the facts contained in the record this appears to be somewhat of a misstatement, the real question being not whether he was denied the benefit of compulsory process but rather whether the trial court abused its discretion in refusing to grant him a continuance to locate his alibi witnesses.

The sixth amendment to the United States Constitution and art. I, sec. 7 of the Wisconsin Constitution guarantee to a criminal defendant the right "to have compulsory process" to obtain witnesses in his behalf. This right has been incorporated in the due process clause of the fourteenth amendment and applies equally to the state. In addition to the constitutional provisions for this right, it is also expressed in sec. 955.04, Stats. 2967, which provides that: "Any defendant shall have compulsory process to compel the attendance of witnesses in his behalf." The sixth amendment does not require that the state be successful in attempting to subpoena the defendant's witnesses, but only that the process issue and that a diligent, good faith attempt be made by the officer to secure service of the process. Maguire v. United States (9th Cir. 1968), 396 F.2d 327, 330.

While a state may not by statute, rule, or otherwise deny a defendant the right to compulsory process, it may, as in the case of other constitutional rights, provide reasonable regulations for the exercise and administration of the right. Since the primary responsibility for having witnesses present in court rests with the parties and not the court, the rule is that a motion for a continuance to obtain the attendance of witnesses is addressed to the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal or review except where it is clearly shown that there has been an abuse. Galloway v. Burke (E.D.C. Wis. 1969), 297 F. Supp. 624; Arndt v. United States (E.D.C. Wis. 1966), 256 F. Supp. 822; State v. Moffett (1970), 46 Wis.2d 164, 174 N.W.2d 263; State v. Whitney (1945), 247 Wis. 112, 18 N.W.2d 705.

In passing upon a motion for a continuance due to the absence of a witness, several factors should be considered by the trial court. Generally, the court may consider whether the testimony of the absent witness is material, whether the moving party has been guilty of any neglect in endeavoring to procure the attendance of the witness, and whether there is a reasonable expectation that the witness can be located. See 22A C.J.S., Criminal Law, p. 103, sec. 486. Where a satisfactory showing is made with respect to these elements, the moving party is ordinarily entitled to a continuance, particularly in a case such as the instant one where the facts sought to be established cannot be proved by other witnesses, and the defendant has a constitutional right to compel their attendance.

The testimony sought to be elicited from the absent witness was material. Testimony which tends to prove that the accused was at another place at the time the crime was committed, and therefore could not have been involved, is clearly relevant and material to the issues before the trier of fact. This is particularly true where the absent witnesses are the only ones who can give such evidence and their testimony would not be merely cumulative.

The second element, the moving party's diligence in attempting to procure the attendance of the absent witness, was clearly lacking here and was the basis upon which the trial court denied the continuance. The general rule as to what constitutes due diligence in these circumstances is stated as follows:

"It must affirmatively appear that accused exercised due diligence in procuring process for witnesses to appear at the trial and delay showing lack of diligence may preclude his securing a continuance because of their absence. If, however, the delay is due to the negligence of the sheriff or other officer, accused will not be affected thereby.

"Due diligence requires that accused should have subpoenas issued in ample time to procure service, or to take depositions if attendance cannot be had, and delay for varying periods after indictment has been held, under the circumstances of the particular case to show lack of diligence . . . .

"It has been held that diligence is not shown where accused waits to secure issuance of process for absent witnesses until the day the case is called for trial, or until the trial has actually begun, or until an unreasonably short time before the trial is scheduled to begin, . . ." 22A C.J.S., Criminal Law, pp. 183, 184, sec. 563 b (2)

A notice of alibi was timely filed on January 9, 1969. The case was originally scheduled for trial on March 19, 1969, and both alibi witnesses were served with subpoenas on March 18, 1969. They did not appear, but the matter was adjourned due to the sheriff's failure to produce the defendant on time. On June 10, 1969, notice was given that the case was scheduled for trial on July 24, 1969. Despite this notice the subpoenas for the witnesses were not issued and delivered to the sheriff for service until July 23d, the day before trial, a delay of six weeks. This delay, coupled with the knowledge that the same witnesses had previously been subpoenaed on short notice and failed to appear, clearly shows a lack of diligence on the part of the defense to procure the witnesses' attendance.

As to the third element, there was no showing of a reasonable probability that the witnesses could be located or their attendance obtained. In fact, there was no showing that any attempt had been made to locate or contact the witnesses prior to the trial date. The defense based its argument solely on the fact that subpoenas had been issued, and made no attempt to explain the delay or show that the witnesses could be produced.

Because of the unexplained neglect in attempting to procure the witnesses' attendance and the absence of any showing that the witnesses could probably be produced, we conclude that the court did not abuse its discretion in denying the motion for a continuance made on the morning of the trial.

The defendant's second argument is that upon his motion for postconviction relief the trial court should have granted Talmadge Edwards and Robert Words immunity from further prosecution to enable them to testify in his behalf.

". . . The power to suspend a criminal law by the tender of immunity to a witness, it has been declared, is legislative power reposing, in case of a state, in the legislature and the governor. . . ." 58 Am. Jur., Witnesses, p. 74, sec. 87. Statutory authority to grant immunity is ordinarily for the benefit of the prosecution, and an accused cannot invoke the provision to compel a witness to testify in his behalf. 98 C.J.S., Witnesses, p. 262, sec. 439.

The statutory authority for the granting of immunity to compel incriminating testimony in Wisconsin is found in sec. 885.34, Stats. 1967, which provides:

"Whenever any person shall refuse to testify or to produce books, papers or documents when required to do so in any criminal examination, hearing or prosecution for the reason that the testimony or evidence required of him may tend to criminate him or subject him to a forfeiture or penalty, he may nevertheless be compelled to testify or produce such evidence by order of the court on motion of the district attorney. . . ."

A statutory requirement for immunity is that a motion to that effect be made by the district attorney. The record in this case does not reveal that such motion was ever made by the district attorney, but only that defendant sought immunity for Edwards and Words in his motion. The trial court did not have authority to grant immunity without a motion by the district attorney and its refusal to do so could not have constituted an abuse of discretion.

The defendant also contends that a new trial should be granted in the interest of justice in order to enable him to present his only defense, namely, that he was not at the place when the crime was committed.

While this court does not hold the trial court abused its discretion in denying the motion for a new trial, the trial court did intimate that if a new trial was to be awarded it should be done in this court. With that invitation we will consider whether the defendant Elam should have a new trial in the interest of justice under sec. 251.09, Stats.

The section provides as follows:

"Discretionary reversal. In any action or proceeding brought to the supreme court by appeal or writ of error, if it shall appear to that court from the record, that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the supreme court may in its discretion reverse the judgment or order appealed from, regardless of the question whether proper motions, objections, or exceptions appear in the record or not, and may also, in case of reversal, direct the entry of the proper judgment or remit the case to the trial court for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with the statutes governing legal procedure, as shall be deemed necessary to accomplish the ends of justice."

In exercising our discretion we will examine the record to determine whether "the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried."

The defendant did not testify in his own behalf, and in fact no evidence at all was offered at the jury trial by his defense other than cross-examination of the state's witnesses. Certainly the defendant has the right not to testify and not to offer evidence in his defense, but in the absence of any evidence by the defense this court is somewhat reluctant to consider a discretionary reversal except under persuasive explanation or compelling circumstances.

At the trial only one witness identified the defendant. He was a "bystander" who was sitting in his vehicle when the truck was burglarized by three men. Upon the record made, the jury was justified in finding that the defendant Elam was one of the three men who burglarized the truck. The question remains was the real controversy fully tried.

Understandably, alibi defenses are easily conceived by the unscrupulous and are subject to the criticism that any defendant who has an obliging friend or relative can have an alibi. However, this criticism should not restrict the defendant's right to have the trier of fact determine the credibility of his alibi witnesses and weigh their testimony against the evidence presented by the prosecution. Indeed, in some cases where an accused is in fact innocent, presentation of his alibi is the only effective way in which he can defend himself.

If the only factor relied upon by defendant in his motion for a new trial was failure to produce alibi witnesses after a lack of diligence in attempting to secure them, we probably would not grant a new trial under sec. 251.09, Stats. However, in this case additional factors lead us to the conclusion that the real issue has not been fully tried.

The affidavits in support of the motion show that one of the alibi witnesses was found after the trial and that he would appear and would testify that the defendant was with him at his apartment at a different location at the time the burglary was committed.

Further, the affidavit shows that one Edwards has stated and confessed to a law enforcement officer that he and not the defendant Elam was the third participant in the burglary. Words, one of the convicted accomplices, also stated that Elam was not there. Admittedly, neither of these witnesses can be required to testify if they rely upon their fifth amendment right, but Elam should have the right to call them in his defense. The defendant should also be permitted to call the detective, Schroeder, to testify as to his recollection of Edwards' confession.

This defendant, who has throughout these proceedings asserted his innocence, should have an opportunity to present his only defense and one which, if accepted by a jury, would establish his innocence.

By the Court. — Order reversed; judgment set aside and remanded for a new trial.