*1 State, Defendant in error.* error, Plaintiff Jensen, v. 31, 1967. 6 October October * rehearing denied, costs, Motion for without on December *3 plaintiff For Robert error there were briefs Friebert, public defender, attorney, Richard H. argument by counsel, oral Mr. Olbrich of Madison Friebert. *4 argued by in error the cause
For the defendant Betty Brown, attorney general, R. assistant with whom gen- Follette, attorney Bronson C. La on the brief were general. Platz, attorney eral, A. assistant and William Five are on J. issues raised this review. The Hanley, question the trial court abused first whether its dis- is allowing testify cretion for the not alibi witnesses to by failing adjourn defendant or to the trial. statute, 955.07, Stats.,
The alibi sec. as follows: is rely “In record, if defendant to courts intends upon attorney give defense, an alibi as a he shall to the district day arraign- written notice thereof on the ment, stating particularly have been when the crime place where he to claims alleged to have been com- is together mitted with the names and of wit- addresses alibi, if nesses known to the In default defendant. notice, evidence of such the alibi shall not be received good court, shown, for unless order.” cause shall otherwise No written notice of alibi was served on the district attorney day arraignment, September on By statutory mandate, therefore, no evidence of alibi was good admissible at the trial court, for “unless cause shown, shall otherwise order.” pointed
As out this in State court v. Selbach 538, 540, “good 68 N. W. 2d whether cause” shown is a matter within the discretion of the trial clearly court. The record demonstrates the trial court did not abuse its discretion. Not was written no given tice of alibi attorney September the district on 24, 1963, but no notice ever served on him until “on 18, 1963, November around 5 o’clock in the afternoon.” began The trial morning the next and at that time the attorney defendant’s stated: “. . . the defendant moves Court for an order al- lowing put him to in evidence to establish an alibi, and
for leave to file written notice of the detail of such alibi, . . .” given The first reason “good to establish cause shown” arraignment was that at the orally defendant stated that he rely would upon intend to an alibi. The record arraignment indicates that at the the defendant’s counsel “they may said that file an affidavit of alibi.” *5 argued second reason counsel was that transcript preliminary hearing not available was arraignment. at the argument time of the This in- is effective since both attorney the defendant and were present preliminary at the hearing, testimony, heard the charges knew the against exact nature of the defendant, including when the crimes occurred.
The third reason is that the notice of alibi could not be compliance in served with the statute because the com- plaints charged and informations that the offenses oc- curred “on or specified about” three dates and until that the “ons or abouts” were stricken the defendant could not file his notice of alibi. The content of the belated argument notice itself shows that this is without merit. respect No alibi was claimed to the offense of 24, arraignment 1963. At the time of the information specifically alleged day the date of August, “the 15th 1963” as the date the second offense. The claim of uncertainty as apply date then cannot to that involving count. The count a claim of alibi which also involved the date described as “on or about” in the August information was crime on Since defendant claims every night to have had an alibi for be- August August tween 13th and 21st, phrase “on or day August” about the 17th in the in no information way prevented timely filing of the notice. night
The alibi during claimed period each August 13th to 21st defendant was not home with children, his wife and spent six but rather his time in premises taverns and then later occupied “at the by Alice Peasecke.” The defendant was aware of this alibi at all times and could have served his notice of alibi in com pliance agree with the statute. We with the trial court “good that there cause shown” for the failure comply statutory requirements. with the
Defendant claims the trial should have been con- beyond tinued November 1963, because of the un- availability transcript. of the The same apply remarks attorney present at
here above. The defendant’s as *6 the preliminary, pressing need was shown the and no alibi de- transcript preparation in of the needed was fense. court error for the contends it was
The defendant next prove jury not have to that the did to instruct the state jury beyond The was a reasonable doubt. the dates charged respect follows: to the dates as with charged against the de- you “If find that an offense defendant, it not neces- is fendant was committed the sary committed proved was have that the offense that the State shall alleged precise in on the date the information. beyond the If a reasonable doubt that the evidence shows alleged, on near the date offense was committed a date that is sufficient.” —Criminal, I, Part
Wis J I prosecutrix Jensen, The mother of the and Michael prosecutrix, brother of the both that there were testified point prosecu- relations on several occasions. At one the trix testified that there were two acts of intercourse August around 15th and Later testified 17th. she there was no act of intercourse while her mother was at testimony hospital, appeared the this last on cross- examination when the defense counsel read statements preliminary she made at the examination and asked her they responded if were true to which she “Yes.” thinkWe question that because there were two offenses in which very occurred close to each other in time and since there general testimony to the effect these acts times, occurred intercourse several this instruction was jury dispel any may error for it allowed it doubts by believing have had that at time some defendant had daughter sexual with his relations on three occasions. practical effect of Thus such an instruction would render the beginning. alibi defense ineffectual from the question designed think in We the instruction for a only in which one fact situation offense is alleged, or multiple where, offenses, if are there there absolutely is
605 anyone’s no in separateness confusion mind as to their time.
Eaton v. State 2d N. W. contention, cited inapplicable. the state on this There charged, one offense was and there could be no confusion as to it when occurred because there was proof any could have date offense occurred on alleged; other than the one made full the defendant proof alleged. alibi on date at court stated page 423: “. . . or could have While words ‘at about’ well been instructions, prejudice. left out we discover no opportunity part jury There was no for to believe day part the offense was committed on rest its one *7 upon proof
verdict another to one date. The is limited specific particular day.” on offense one Error also court one claimed because the barred testifying Alice Peasecke from as a surrebuttal witness. The facts are as follows: On direct examination defend- night August ant testified that he the the left house on of 15, 1963, p. girl picked up friend, 7at m. and went to his several and 6 bars did not return home until or 7 about a. morning. only m. the next led cross-examination expansion to an part of the facts on the of the defendant. In testimony rebuttal to produced this alibi the the state supper girl co-owner of the club at the which defendant’s friend, Peasecke, employed. Alice was He that testified employment prepared by the records which Alice were by Peasecke and also verified the indicated headwaitress Peasecke, that Alice whom supposedly with the defendant spent August evening on his time the of 15th the and morning August 16th, p. of worked from 4:30 m. on August midnight. until prepared 15th The defendant was put Peasecke the explain Alice on stand witness testimony supper of club owner but was excluded judge the trial because he held that she was an alibi witness, timely notice of alibi was not filed. De-
606 Alice Peasecke proof of that fendant then made an offer was work- testify showed she that the record would girls of there and ing a there substitution because was girl freeing her for another traded times with that she be evening August clear that she would 15th. It is of merely would The contention that she an alibi witness. testimony supper be club owner cannot rebut testimony not work accepted at because the she testimony in- own that she was corroborates defendant’s him. with deed only testimony any doubt
In her would tend to cast case August charges. like- 15th and 17th It is on the error in affects true that the the instructions wise charges presented for the because no alibi was these two charges. applicable the rule of 24th There is thus 450, 457, 2d 129 Pulaski v. State N. W. 919, Sup. 913, denied, 380 U. Ct. 2d certiorari S. it held: 13 L. Ed. 2d where was a “. . . when a defendant been convicted on num- has given ber duration, counts and is concurrent sentences similar prejudice requiring a reversal for there is any error if there is a conviction on of the valid counts.” Defendant also contends that it error for the court impeach testimony not to allow him to of Michael showing Jensen that he had a conversation his with during father which he told his father mother father, wanted him to tell “a lot about his stuff” anything that he did not know about what he testified to *8 improper testimony in court. While it is to exclude the expected impeach a himself, who can be to witness the testimony exclusively of Michael deals with events oc- curring parents’ Destroying credibility at his home. way April charge, in no the would affect 24th since the grandparents. Thus, incident occurred at the home of his applies error rule of the Pulaski Case harmless to any might error which have been committed here also. As portion projected testimony to that of Michael’s concern-
607 ing attempt him, which his mother’s influence would prejudice part, tend to show bias and her that testi- on mony April charge either, would not affect the 24th since testimony charge only her with reference discharge bedding prosecutrix’s she noticed a pajamas. on the testimony
Dr. Hartlaub’s corroborates discharge fact that such a is no claim occurred. There preserved attempted prosecutrix that she to influence the prosecutrix or Jensen, James brother who another also testified for the state. Lastly, prove the defendant the state failed to contends
beyond a reasonable doubt that the defendant inter had April 24, 1963. course with the minor child on The claim prosecutrix’s testimony April is made that the to the as charge support guilty 24th is insufficient to a verdict testimony her because was inconsistent as to whether on finger that date defendant inserted his her or into accomplished. an whether testimony intercourse act occurred intercourse was buttressed testimony Hartlaub, of Dr. who testified that on sperm present 24, 1963, were a smear cells taken vagina. testimony from her The uncorroborated of a support jury’s victim has been held sufficient to verdict. (1965), Gauthier v. State 28 412, 2d 2d 137 N. W. Sup. 101, denied, 916, certiorari 910, U. 86 15 S. Ct. L. 2dEd. 671. appeal sufficiency
On in a criminal case the test of of the evidence for a conviction is whether the evidence rationally jury adduced, believed and considered prove guilt beyond was sufficient to defendant’s a reason- able doubt. Oseman v. State Wis. 2d 145 N. W. 2d In this case victim testified that finger the defendant both inserted his her into and also engaged in intercourse; an act sexual and the testi- mony of Dr. Hartlaub corroborated the victim’s testi- mony that sexual intercourse occurred. points
Defendant to the fact that Dr. Hartlaub ex- September 9, amined the victim on 1963, and found the *9 607a gonorrhea that defend
presence sperm of male responsible, for he was ant the one could not have been 1963, evi September 16, and no examined doctor on gonorrhea testified discovered. The victim dence except anyone her she had never had relations with that destroys completely This, argues, father. defendant destroys credibility. that it We do not believe victim’s charge. credibility April 24, 1963, her as to the prejudicial error on We conclude that while there was 17, 1963, the two 15 and there was counts 24, prejudicial to the count of error reference previously cited, Therefore, rule, 1963. Pulaski under the judgment must be affirmed. By Judgment affirmed. Court. — following 22, memorandum was filed December 1967. (on rehearing). motion Defendant Per Curiam for
urges that, prejudicial error inasmuch as was found with respect he two the three as to which counts convicted, we should those two convictions. It reverse is claimed affirmance of those two convictions might adversely parole affect action board with respect applications parole pardon. to future for or This by independent investigation court has verified might respect being this occur. With to this a valid ground setting for aside such two State convictions see 244, 251, ex rel. (1965), Goodchild v. Burke 27 2dWis. 252, Therefore, 133 N. 2dW. the mandate should provide setting revised so as to for be aside of these leaving respect two convictions stand that with to the relating April 24, 1963, count to the conviction. rehearing In brief for defendant raises for the first time the constitutionality issue of Wis- statute, 955.07, consin’s alibi sec. Stats. decline to We ground consider this issue on the it is raised too Bay Drop Forge late. See Green Co. v. Industrial Comm. 38, N. W. 2d 61 N. W. 2d
607b *10 Equipment and Martinson v. ante, Brooks Leasing, Inc., p. 209, 224b, 152 N. 2d 849. W. requests that, brief
Defendant’s in the event we decline rule constitutionality to on the timely issue because not raised, rehearing his brief for petition be treated aas corpus. for habeas We decline to do so because no alibi attempted interposed respect be with to the 24, 1963, charged litigant urge may offense. A not unconstitutionality upon point affecting of a statute not rights. Family Corp. Finance v. Sniadach 37 Wis. 2d N. W. 2d cited in cases foot- note 2 thereof. original
The mandate is revised so as read as follows: part judgment “That of the of conviction and sentence relating charged to the August August offenses 15 and 17,1963, reversed; part judgment relating of such charged to the April 24, 1963, offense of is affirmed. may state at retry election its respect defendant with August to the 17,1963, charged offenses.” rehearing The motion for is denied without costs.