Gelosi v. State
| Decision Date | 30 April 1935 |
| Citation | 218 Wis. 289,260 N.W. 442 |
| Parties | GELOSI v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to review an order of the Circuit Court for Dane County; A. C. Hoppmann, Circuit Judge.
Joseph Gelosi was convicted as accessory before the fact and accessory after the fact to murder, and, to review an order denying his motion for the issuance of a writ of error coram nobis, he brings error.--[By Editorial Staff.]
Affirmed.
This is a writ of error to review an order entered on January 5, 1935, by the circuit court for Dane county, denying the motion of the plaintiff in error for the issuance of a writ of error coram nobis. The plaintiff in error was found guilty on two counts with being accessory before and after the fact of murder. He was sentenced December 28, 1932, to the state prison at Waupun for life, and is now confined in said prison. On appeal to this court from the conviction and sentence, the judgment of the circuit court was affirmed on June 26, 1934 (255 N. W. 893).
The material facts will be stated in the opinion.
Rehearing denied; Rosenberry, J., took no part.O. A. Stolen and Cyril E. Marks, both of Madison, for plaintiff in error.
James E. Finnegan, Atty. Gen., Joseph E. Messerschmidt, Asst. Atty. Gen., and Lyall T. Beggs, Dist. Atty., and Fred Risser, Special Prosecutor, both of Madison, for the State.
The plaintiff in error was convicted as accessory before and after the fact, in connection with the murder of one Andrew Presti, by a jury in the circuit court for Dane county on December 24, 1932, and on December 28, 1932, was sentenced by said court for life to the state prison at Waupun. An appeal was taken from the judgment of the circuit court to this court, which judgment was affirmed on June 26, 1934. Gelosi v. State, 255 N. W. 893.
[1] On January 3, 1935, plaintiff in error moved in the circuit court for Dane county on an order to show cause why a writ of error coram nobis should not issue for the purpose of vacating and setting aside the verdict of the jury and the judgment and sentence imposed by said circuit court, and for a new trial on the ground of misconduct on the part of bailiffs and certain jurors occurring during the trial of said action in the circuit court, which alleged misconduct consists of, first, that during the trial, and after the district attorney had cross-examined defense witnesses, he attempted to recall said witnesses for further examination; that such witnesses did not respond to the call of their names in the courtroom, whereupon the district attorney stated in substance that “he wanted said witnesses held.” This incident occurred in open court during the progess of the trial. Defendant's counsel made no objections to the request or remark of the district attorney. The district attorney had the right to recall such witnesses for further cross-examination, and, if they were not in the courtroom when called, it was proper to request the bailiff to produce them or to issue a subpœna for them for such further cross-examination as might be proper. There is no merit in this alleged error.
[2] The second ground urged for the writ is that, after the case had been submitted to the jury, and while the jurors were walking from the Park Hotel to the courthouse on the morning of December 24, 1932, for deliberation, said jurors in charge of two bailiffs passed a newsstand located on the street in front of said Park Hotel; that as they passed the newsstand some newspapers were lying on the sidwalk; that some of the jurors saw and read the headline, which was, in substance, as follows: “Jail Three Gelosi Witnesses.” No claim is made that any of the jurors read more than the headline or that they obtained any other or further information about the matter.
At the hearing on the order to show cause for said writ of error coram nobis, the plaintiff in error submitted the affidavits of two of the jurors who served during the trial in the circuit court. These affidavits are to the effect that on December 23, 1932, one Joseph Hayes, a witness called by the state, testified concerning what he claimed to have seen and heard transpire in a room at the Loraine Hotel in the city of Madison; that. according to the testimony of said Hayes, certain defense witnesses made statements indicating that money had been used on behalf of the defendant (pla...
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Jessen v. State
...577 (1950); State v. Dingman, 239 Wis. 188, 300 N.W. 244 (1941); State v. Wagner, 232 Wis. 138, 286 N.W. 544 (1939); Gelosi v. State, 218 Wis. 289, 260 N.W. 442 (1935); Ernst v. State, 181 Wis. 155, 193 N.W. 978 (1923); In re Ernst, 179 Wis. 646, 192 N.W. 65 The writ of error coram nobis wa......
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...discretionary and will be reversed only in case of a clear abuse of discretion. Ernst v. State, 181 Wis. 155, 193 N.W. 978;Gelosi v. State, 218 Wis. 289, 260 N.W. 442;State v. Wagner, 232 Wis. 138, 286 N.W. 544. The writ cannot be resorted to in order to obtain a new trial on the ground of ......
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...not have been entered, the writ of coram nobis should not be granted. Ernst v. State, 1923, 181 Wis. 155, 193 N.W. 978; Gelosi v. State, 1935, 218 Wis. 289, 260 N.W. 442. The plaintiff in error contends as a second ground that one of the state's witess falsely testified under compulsion and......
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