Fritz v. State

Citation130 N.W.2d 279,25 Wis.2d 91
PartiesVictoria FRITZ, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
Decision Date29 September 1964
CourtUnited States State Supreme Court of Wisconsin

John Wm. Calhoun, Fond du Lac, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz, Betty R. Brown, Asst. Attys. Gen., Madison, Jack Steinhilber, Dist. Atty., Winnebago County, Oshkosh, for defendant in error.

WILKIE, Justice.

There are two questions presented on this appeal:

1. Is coram nobis the proper remedy to upset a first-degree murder conviction under the vicarious liability statute on the ground that after time for appeal had expired, the sole accomplice was found not guilty because of insanity?

2. Did the trial court err in refusing to appoint counsel to pursue a writ of coram nobis?

Coram nobis is a statutory remedy 1 directed at the trial court. The type of error that may be reached by coram nobis was comprehensively considered in Houston v. State, 2 wherein it was stated:

'* * * An error to constitute a ground for the granting of the writ of coram nobis must not only be unknown to the court but would have prevented the judgment of the court. * * * Unless it clearly appears that an error of fact existed before judgment and but for such error the judgment would not have been entered, the writ of coram nobis should not be granted.' 3

The writ will not lie to correct an error of law. 4 The granting or denial of the writ is highly discretionary and only a clear abuse of discretion on the part of the trial court will prompt a reversal. 5

In essence, in order to use coram nobis the error complained of (1) must have been unknown at the time of the trial, and (2) would have prevented the judgment.

In the instant case, for coram nobis to be available, the evidence of Clayton's mental aberrations must have been unknown at the trial, and furthermore, his insanity must constitute a defense for her actions.

Although Clayton was not adjudged insane for better than a year and a half after the trial of Mrs. Fritz, it was no secret that he had his problems. Mrs. Fritz (and her attorney) knew that he had been committed to Winnebago State Hospital on two previous occasions. She also knew that after the murder, psychiatrists had found him incompetent to stand trial and that he was committed to Central State Hospital. If her defense was to be based on Clayton's insanity, there was sufficient notice of his condition to have had that issue resolved at the trial or at least to have requested a postponement until a final determination on his sanity had been made. With this knowledge, Mrs. Fritz cannot lie in the weeds at the trial and then complain at this time, for the first time, that she was ignorant of her accomplice's condition. Even if it were found that at the trial she was unaware of Clayton's insanity, for coram nobis to lie, the fact of his insanity must, as a matter of law, have prevented her conviction.

Mrs. Fritz was convicted of first degree murder under the vicarious liability statute. 6 The jury was instructed on the conspiracy element in the statute, but not on the aiding and abetting or other portions. The conviction then rested upon the jury's finding that Clayton, who actually did the deed, and Mrs. Fritz were co-conspirators. Plaintiff in error contends that as it takes at least two people to conspire, where one of the two alleged co-conspirators is acquitted there can be no conspiracy. The cases cited to this effect involve the inchoate substantive crime of conspiracy, 7 and as to that crime the general statement of the law is correct. However, Mrs. Fritz was not convicted of the crime of conspiracy, but rather of first-degree murder under sec. 939.05, Stats. Sec. 939.05(1) provides that a person can be convicted of a crime as a principal 'although he did not directly commit it and although the person who directly committed it has not been convicted * * *.' Sub (2) of sec. 939.05 provides that a person 'is concerned in the commission of the crime if he * * * [i]s a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. * * *' It was the drafter's intent that people not present at the commission of crimes committed by their innocent agents be convicted as principals, and furthermore that the conviction of the actual doer is not essential to the conviction of others involved. 8

Plaintiff in error also argues that she cannot be convicted of first-degree murder because her alleged co-conspirator was incapable of imparting the necessary intent to her. This contention is also answered by sec. 939.05(1), Stats. A conviction of the one who committed the crime is not required. It should make no difference whether the acquittal is based simply on a finding of not guilty, or on a finding of not guilty by reason of insanity.

Thus the insanity of Clayton would not have prevented her conviction, and this is a further reason why the trial court did not abuse its discretion in denying the writ.

Plaintiff in error is indigent and claims that the trial court erred in not appointing counsel to prosecute her writ of coram nobis. 9 It is violative of equal protection to deprive an indigent of the right to appeal or procure a writ of error. 1...

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8 cases
  • People v. Austin
    • United States
    • California Court of Appeals Court of Appeals
    • October 10, 1980
    ...233 Cal.App.2d 446, 456-457, 43 Cal.Rptr. 566; murder, State v. Benton (1970) 276 N.C. 641, 174 S.E.2d 793, 801; and Fritz v. State (1964) 25 Wis.2d 91, 130 N.W.2d 279, 281. The common law rule is contained in California Penal Code section In People v. Roberts, supra, the court upheld the p......
  • Kenneth F. Sullivan Co. v. Industrial Commission
    • United States
    • Wisconsin Supreme Court
    • September 29, 1964
  • State v. Vinson
    • United States
    • Florida District Court of Appeals
    • July 19, 1974
    ...was convicted of uttering and passing a forged instrument through the innocent agency of a third party. The court in Fritz v. State, 1964, 25 Wis.2d 91, 130 N.W.2d 279, applied an aiding, abetting and procuring statute 1 to uphold the legality of a conviction of a woman who had procured her......
  • State v. Kanieski
    • United States
    • Wisconsin Supreme Court
    • April 12, 1966
    ...scope in this state and was given statutory recognition and preserved by sec. 958.07, Stats., in 1949. In the recent case of Fritz v. State (1964), 25 Wis.2d 91, on page 95, 130 N.W.2d 279, on page 280, we stated: 'The type of error that may be reached by coram nobis was comprehensively con......
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