Logan v. State
| Citation | 168 N.W.2d 171,43 Wis.2d 128 |
| Parties | Donald Gale (Dale) LOGAN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State 125. |
| Decision Date | 06 June 1969 |
| Court | United States State Supreme Court of Wisconsin |
This is error to review an order of the county court of Racine county denying the motion of the plaintiff in error for a new trial. The plaintiff in error, Donald Logan, who was the defendant in the action in the trial without a jury before the county court of Racine county, presided over by Judge Thomas P. Corbett, was charged and found guilty of armed robbery and endangering safety by conduct regardless of life, contrary to sec. 943.32(1)(b), (2) and sec. 941.30, Stats., respectively. These charges arose out of a sequence of events that allegedly took place on June 17, 1966. On that particular evening, the defendant and his brother Larry were involved in a fight with one Max Segura. The fight was stopped by the police, and he and Max Segura were arrested and taken to the police station. Defendant was released shortly thereafter following the posting of bail on a disorderly-conduct charge.
Gil Rendon, a fifteen-year-old boy, was a witness to this fight and was apparently a friend of Max Segura. As the defendant was leaving the police station, he saw Rendon, and they discussed the fight. At about this time, the defendant allegedly realized that he could not remember where he had left his car, and he offered Rendon a dollar to help him find it. With the help of Rendon, the car was found, and the defendant gave Rendon a dollar for his assistance. It is undisputed that they drove around Racine county, during which time the defendant asked if Rendon would be willing to testify that Max Segura had a knife during the fight. To this point in the chronology of the incidents of that evening, there is little substantial dispute. However, the criminal charges for which the defendant is presently confined in the state prison arise out of the facts alleged by Rendon and which are denied almost in toto by the defendant.
Rendon testified that the defendant took a .22 caliber revolver from the glove compartment of the car and removed some bullets from the gun, but he did not know how many. Subsequently, the defendant was joined by his brother Larry, and the three of them continued their ride. Rendon testified that the defendant stopped the car and Rendon was asked whether he would prefer to shoot himself or have the defendant shoot him. Larry held a knife to Rendon's throat and, under these circumstances, Rendon chose to shoot himself, put the gun to his head, and pulled the trigger eight times. The gun did not fire. After this happened, the gun was taken from him, and Rendon was returned to Racine. Before the defendant and his brother let Rendon out, the defendant asked for Rendon's wallet.
At trial all the material allegations alleged by Rendon, the complaining witness, were denied by the defendant, and he in fact testified that he never owned a gun and that there was no gun in the car or in the glove compartment on the night of the alleged offense, and he denied that he ever asked Rendon for his billfold.
During the course of trial, the attorney for the defendant produced Larry Logan, the brother of the defendant Donald, whose whereabouts had been unknown to the police for the several months between the incident and the trial. Following a few preliminary questions, the district attorney objected to Larry's testimony on the ground that it was alibi testimony and that no notice of alibi had been filed with the district attorney on the day of arraignment, as required by sec. 955.07, Stats. In default of such notice, the trial judge ruled that the testimony apparently being elicited from Larry was not to be received, since it was in the nature of an alibi.
The trial court based his decision upon the diametrically opposed stories of the defendant and Rendon. In finding the defendant guilty, he concluded that the principal question to be determined rested on the credibility of the witnesses. On the basis of the conflicting testimony of the complaining witness and the defendant, he chose to believe Rendon, made a finding of guilty, and imposed sentences.
The writ of error has been taken from subsequent motion for a new trial.
Brown, Black & Riegelman, Racine, for plaintiff in error.
Robert W. Warren, Atty. Gen., William .a. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Gerald E. Clickner, Racine County Dist. Atty., Racine, for defendant in error.
Where a writ of error is taken from an order denying a new trial, the question to be resolved by this court is whether the trial judge abused his discretion in denying the motion. State v. Waters (1965), 28 Wis.2d 148, 152, 153, 135 N.W.2d 768; State v. Bidwell (1930), 201 Wis. 210, 212, 229 N.W. 633.
The defendant on this writ of error and on the motion before the trial court argued that the court abused its discretion inasmuch as the court committed a legal error when it sustained an objection to Larry Logan's testimony as alibi, when it was in fact merely testimony that was corroborative of the defendant's version of the incident.
At the trial, the defense counsel called the defendant's brother Larry to the stand. He had Larry testify about his activities and those of his brother, the defendant, during the early part of the evening, June 17, prior to any meeting with the alleged victim, Gil Rendon. At the time Larry began testifying in detail about the fight with Max Segura, the district attorney objected, stating:
The court asked the defense counsel to explain the purpose of the proposed testimony. He responded by stating that the testimony was merely preliminary. Thereafter, the court generally advised counsel of the necessity of complying with sec. 955.07, Stats., if an alibi witness were to be used. The following exchange followed:
After the trial court explained the alibi statute further, defense counsel elected to proceed with his questioning of Larry Logan. The district attorney made further objections, and defense counsel pointed out that the purpose of the testimony was corroboration. Then, after further questions of a preliminary nature, this question was asked:
After further colloquy between counsel and the court, defense counsel stated that the entire remainder of his questions would be in the realm of alibi; and, in response to a specific question by the trial judge, defense counsel elected to terminate the examination of the witness.
Following trial, and for the court's consideration on a motion for a new trial, affidavits were submitted by Attorney David Monson, defendant's counsel in the trial, and by his brother, Larry Logan. These affidavits make it clear that, had Logan been permitted to testify, he would have stated that, although the defendant Donald Logan was at the places testified to by the complaining witness Rendon, his conduct was not that described by the complaining witness but was that as substantially described by the defendant at trial.
The testimony was not of an alibi nature but was corroborative of the defendant's version of what happened. The word, 'alibi,' is merely a shorthand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, 'alibi,' is simply the Latin word for 'elsewhere.' Cassell's New Latin Dictionary (Funk & Wagnall, 1960). A defense which admits the accused's presence at the scene of the crime but disputes his guilt is not alibi. 1 Wharton, Criminal Law (Anderson, 12th ed., 1957), p. 260, sec. 121, states:
1 Wharton, Criminal Evidence (Anderson, 12th ed., 1955), p. 432, sec. 212, points out that alibi is established by 'Anything...
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