Opinion
September 14, 1956 —
October 9, 1956.
ERROR to review orders and a judgment of the municipal court of Milwaukee county: HERBERT J. STEFFES, Judge. Affirmed.
For the plaintiff in error there was a brief by Robert J. Beaudry, attorney, and William B. Rubin of counsel, both of Milwaukee, and oral argument by Mr. Rubin and Mr. Beaudry.
For the defendant in error there was a brief by the Attorney General and William A. Platz, assistant attorney general, and William J. McCauley, district attorney of Milwaukee county, and Hugh R. O'Connell, special assistant district attorney, and oral argument by Mr. O'Connell and Mr. Platz.
Plaintiff in error, Raymond Wilson, pleaded guilty to a charge of murder in the first degree. Upon his plea the trial court adjudged him guilty and sentenced him to imprisonment for life in the state prison. Thereafter Wilson applied to the trial court for a writ of error coram nobis and a new trial. Upon hearing of an order to show cause why that writ should not be granted and a new trial ordered, the court denied both the writ and the motion for a new trial. Wilson has now obtained a writ of error from the supreme court to review the orders denying such relief and to review the judgment.
It is conceded that on November 29, 1954, Wilson dismembered the body of his wife and burned those parts of it which would not go down the bathtub drain. On December 1954, an information charging first-degree murder was lodged against him. He was arraigned in the municipal court on December 30th, was represented by counsel, Mr. Charles Hammersley, and pleaded not guilty and not guilty by reason of insanity at the time of the act. The court, pursuant to sec. 357.27 (now sec. 957.27), Stats., appointed three disinterested, qualified experts in mental diseases to examine Wilson and report. Mr. Hammersley then remarked that he believed his client was presently insane and the court appointed the same three alienists to examine Wilson and on January 5, 1955, report their findings concerning his present mental condition, all as directed by sec. 357.13 (now sec. 957.13). On January 5th, with the defendant and his counsel in court, the three doctors reported that they had examined Wilson and found him to be presently sane, not to be feebleminded, and that he was able to counsel with his attorney in his own behalf. The trial court then expressly found for the record that "this defendant at this time is sane; that he is not insane; that he is not feeble-minded; and that he is not incapacitated to act for himself." It then appointed February 23, 1955, as the date when the issues raised by the defendant's two pleas should be tried.
On February 19, 1955, the defendant and his attorney appeared again before the court. The state was represented by Mr. Tierney, deputy district attorney of Milwaukee county. The following proceedings were had:
"The Court: The plea is not guilty and a special plea of not guilty because insane.
"Mr. Hammersley: You desire to change your plea?
"Defendant: I do.
"Mr. Hammersley: And what do you now plead?
"Defendant: Guilty.
"The Court: In other words, the defendant asks leave to withdraw his general plea of not guilty and his special plea of not guilty because insane at the time of the commission of the alleged offense, and enter a general plea of guilty to the charge in the information. Is that correct, Mr. Hammersley?
"Mr. Hammersley: Yes.
"The Court: Is that correct, Wilson?
"Defendant: That's right.
"The Court: Now, Mr. Hammersley, have you apprised the defendant fully of the potential consequences of the plea to this charge, that on a plea of guilty the punishment under the statute is life imprisonment? Does the defendant fully understand all the consequences of the plea?
"Defendant: I think I do."
The court then questioned Mr. Hammersley about his consultation with and advice to his client after which Wilson was again addressed:
"The Court: You understand the nature of the charge, Mr. Wilson. You are charged here with first-degree murder of one Ethel Wilson and you are pleading guilty to that charge, is that correct?
"Defendant: That's right.
"The Court: And you understand fully what you are doing in that respect?
"Defendant: Yes.
"The Court: And you are doing this of your own free will, are you?
"Defendant: I am.
"The Court: All right, leave is granted to the defendant to withdraw his general plea of not guilty and his special plea of not guilty because insane at the time of the commission of the alleged offense, and a plea of guilty to first-degree murder, as charged in the information, may be entered, and you may proceed."
The court then received evidence including a statement given by Wilson to the district attorney on December 3, 1954, all of which established without dispute that Wilson, a butcher with his home and shop in one building, on November 29, 1954, to rid himself of his blinded, invalid wife, struck her on the back of the head with his cleaver and then disposed of her body as already stated. At the conclusion of the testimony the court adjudged the defendant "guilty of the offense charged against you in the information in this case, to wit: Murder in the first degree of your wife, Ethel Wilson, at the time and place charged therein," and asked Wilson if he had anything to say why sentence should not be pronounced against him, whereupon Wilson announced that he did not murder his wife but found her dead in her chair at suppertime, that he then "blacked out" and in the blackout disposed of her body. The learned trial judge said frankly that he did not believe the defendant's present statement, pointing out inconsistencies. He told Wilson that he could set the day's proceedings aside and try him on his original plea. Wilson, however, persevered in his plea of guilty and to the court's direct question: "I am asking you whether you killed your wife," answered: "All right, I killed my wife." Sentence was then pronounced.
Wilson has retained new counsel. They moved the trial court for a writ of error coram nobis and for a new trial. These motions were denied and the supreme court is now asked to review the judgment of conviction and the denials of subsequent relief.
Sec. 958.07, Stats. (new number), provides that the writ of error coram nobis may be issued under certain circumstances. It is a writ of long standing. The leading Wisconsin cases concerning it are In re Ernst (1923), 179 Wis. 646, 192 N.W. 65, and State v. Dingman (1941), 239 Wis. 188, 300 N.W. 244. These cases and the texts make it clear that this writ is highly discretionary and the determination of the court to which the application was made will not be reversed unless it very clearly appears that discretion was abused. The writ will not lie if an appeal may be taken to correct the errors alleged by the petitioner. The writ may be granted when facts not of record are produced, by affidavit or testimony, which were not known to the trial court at the time it entered judgment and which if known would have prevented the entry of the judgment complained of.
Neither the petition nor the argument of counsel brought to the court any new facts whatever. They simply review those portions of the record in which they contend the trial court committed error. If the objections are well taken, these matters were properly reviewable in an appeal from the judgment. No foundation has been laid upon which the writ of error coram nobis could be granted and, accordingly, the denial of the writ was not an abuse of the discretion of the trial court. Its order denying the petition for a writ of error coram nobis is affirmed.
In support of the motion for a new trial the plaintiff in error submits that he was convicted without due process of law, particularly in that the finding respecting his sanity at the time his case was heard was based upon obsolete and incompetent opinions, the plea of insanity at the time of the commission of the offense was never tried nor heard, that no competent evidence was had that Mrs. Wilson was alive at the time of the alleged killing and that the plea of guilty was involuntary.
The medical experts who pronounced Wilson sane at the time of hearing testified, among other things, that he could distinguish between right and wrong and knew the nature and quality of his acts. This is the time-honored "McNaghten rule" for the determination of sanity. In this state we have defined legal insanity as "`such a perverted condition of the mental and moral faculties as to render the person incapable of distinguishing between right and wrong.'" Oehler v. State (1930), 202 Wis. 530, 535, 232 N.W. 866, citing Jessner v. State (1930), 202 Wis. 184, 231 N.W. 634. Sec. 357.13 (1), Stats. (now sec. 957.13 (1)), provides:
"If the court is reliably advised before or at his trial or after conviction and before commitment that the defendant is probably insane or feeble-minded, the court shall in a summary manner make inquiry thereof."
Sub. (2) thereof provides:
"If the court finds that the defendant is insane or feebleminded, his trial or sentence or commitment shall be postponed indefinitely. . . ."
Counsel for the defendant submit that the McNaghten rule is obsolete and call upon us to adopt some other, unspecified, test. The state contends that the defendant's appreciation of the distinction between right and wrong is immaterial at this stage of proceedings and what is really important is his capacity to confer with his counsel and assist in his own defense. We agree with the state that trial should be indefinitely postponed if the defendant's mental condition renders him incapable of conferring with his attorneys in his own behalf but do not adopt the theory that defendant's ability to distinguish between right and, wrong at the time of trial is immaterial as long as that ability remains a test of his sanity. The statute, sec. 957.13, applicable at that time when his mental state is reliably questioned, directs inquiry be made as to sanity and provides measures to be taken if insanity is found. It was obligatory, therefore, for the court to inform itself concerning Wilson's sanity at the time of hearing. The court proceeded to do so and we find no error in using, in the investigation, the test of insanity recognized and approved in this jurisdiction at least since Oehler v. State, supra, especially as the legislature in the interval has not provided a different test or definition. By the testimony of the alienists the trial court was informed that Wilson was presently sane, as that term is understood in the law, and that he was mentally capable of acting in his own behalf in consultation with his attorney. Under the circumstances the court could hardly have resolved the question of Wilson's mental state other than it did and nothing in the entire record even, suggests that the defendant lacked adequate mental capacity at any time during the several hearings. We find no error in this respect.
Plaintiff in error now submits that his plea of guilty was involuntary. The record completely refutes this contention. The portions of it already quoted dealing with his application to withdraw his original pleas indicate how little merit there is in the contention that his plea of guilty was involuntary or produced by coercion of any nature. He also complains that the question of his sanity at the time of the offense was never tried. Of course it was not. He withdrew the plea which raised that issue and by the substituted plea of guilty, which, as we have said, was voluntary, made by a competent person with advice of counsel, he conceded his responsibility. His plea likewise concedes that it was he who brought about his wife's death, although he submits now that there is no competent evidence that he did so. The evidence was ample. In his statement to the district attorney, introduced in evidence after judgment but before sentence, Wilson expressly and in great detail admitted the fact that he struck his living wife with his cleaver and then cut her up with the other tools of his trade; and in reply to the trial judge's direct question he replied: "All right. I killed her." We find no merit in his present suggestion that she died from natural causes.
Counsel submit that the attorney who represented Wilson originally was inexperienced and incompetent, wherefore the defendant did not receive justice. The attorney in question has been an active and respected member of the bar of this court since the year 1905. The record does not support the assertion that Wilson's rights were in any way prejudiced by his choice of counsel. Our own labor to make sure that plaintiff in error received complete protection under due process of the laws has been unnecessarily increased by the present attorneys' failure to supply an appendix in the form and content required by the rules of this court. We trust that these omissions will not be cited to us later as a measure of the capacity of current counsel.
We conclude that plaintiff in error's motion for a new trial was properly denied.
By the Court. — Orders and judgment affirmed.