State v. Dingman

• Decision Date: 02 December 1941
• Citation: 300 N.W. 244,239 Wis. 188
• Parties: STATE v. DINGMAN.
• Court: Wisconsin Supreme Court

239 Wis. 188

300 N.W. 244

STATE

v.DINGMAN.

Supreme Court of Wisconsin.

Oct. 7, 1941.

Rehearing Denied Dec. 2, 1941.

Appeal from an order of the Circuit Court for Wood County; Herman J. Severson, Circuit Judge.

Affirmed.

Petition for a writ of coram nobis was filed by Elmer Dingman to review his conviction and sentence by the circuit court for Wood county on the charge of first degree murder. After a hearing and the consideration of affidavits filed on behalf of Dingman, and counter-affidavits filed by the State, the court denied his motion for the writ and he appealed.

Harold V. Schoenecker, of Milwaukee, (Stewart G. Honeck, of Milwaukee, of counsel), for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Daniel T. Hosek, Dist. Atty., of Marshfield, for respondent.

FRITZ, Justice.

On October 10, 1935, the appellant, Elmer Dingman, was found guilty of murder in the first degree on a trial by jury in the circuit court for Wood county, Circuit Judge Byron B. Park, presiding. The charge was based on the murder at about 3 A.M. on August 5, 1933, of police officer Beell, while he was investigating a burglary which was being committed by four men at the office of a brewery at Marshfield. Judge Park denied a motion for a new trial made by Dingman before judgment was entered; and subsequently on March 1, 1937, likewise denied Dingman's motion for a new trial on the ground of newly discovered evidence. In July, 1940, Dingman filed his petition for a writ of coram nobis and the hearing of his motion for the writ was before Circuit Judge Herman J. Severson, Judge Park's successor in office. On October 31, 1940, Judge Severson entered an order denying Dingman's petition for a writ of coram nobis, and from that order this appeal was taken on December 18, 1940. Dingman then also appealed from the judgment convicting him, of the murder, which was entered October 10, 1935, and from the order of March 1, 1937, denying his motion for a new trial. His appeals from the latter order and the judgment were dismissed on April 15, 1941, on the ground that they were not taken within the time limited by statute. State v. Dingman, 237 Wis. 584, 297 N.W. 367.

On the trial which resulted in Dingman's conviction on October 10, 1935, the matter in controversy was principally the identification of Dingman as one of four men who participated in the commission of the burglary and the resulting murder of officer Beell. All of the four escaped on the night of the crime. One of them, Edward Gabriel, was shot that night, and the next day his body was found on a roadside in Minnesota. Another participant, Joe Webster, was subsequently arrested and finally filed a plea of guilty to the charge of murder in the third degree, and was convicted and sentenced on that charge. After that Dingman, who had been returned to the state penitentiary of Nebraska to serve an unexpired sentence upon violating the terms under which he had been released on probation, was arrested upon being identified at the penitentiary by Frank Heinzen, who resided opposite the brewery office and claimed to have witnessed in part the commission of the crime. On the trial of Dingman his identification as a participant in the crime depended largely upon Heinzen's testimony; and Dingman's defense was based largely on an alibi which he sought to establish by proof that he registered as “Mr. and Mrs. J. Marks”, with Helen Marks as his wife, at a hotel in Madison at 10:45 P.M. on August 4, 1933, and that under the name of “J. Marks” he had applied for an automobile license on the morning of August 5, 1933, at the Madison office of the state Motor Vehicle Division. He did not testify at the trial. On his motion after judgment for a new trial based on affidavits as to newly discovered evidence he relied upon matters which he claimed disproved his participation in the crime and his identification by Heinzen's testimony. Likewise, in support of his motion for a writ of coram nobis Dingman relied upon many matters alleged in his petition and stated in affidavits filed by him to disprove the identification of Dingman and his participation in the crime, and to impeach Heinzen's testimony as to his identification of Dingman; and to also impeach the testimony and condemn the conduct of Charles Pors as district attorney in investigatingthe crime and preparing the prosecution thereof, and in testifying as a witness at the trial after having been succeeded by Hugh Goggins, the district attorney who conducted the prosecution on the trial; and also to condemn the conduct of Frank Prange, a police informer, who had furnished District Attorney Pors with information concerning the identity of the persons, including Dingman, believed by the State's attorney to be responsible for Beell's murder. In reply to the verified allegations and statements relied upon by Dingman, the State filed counter-affidavits by which it traversed virtually all allegations or statements that were material on the hearing of the motion for the writ.

[1][2][3][4] With the record in this state, presenting but issues of fact created by contradictory statements in the opposing affidavits in relation to but virtually the same matters and ultimate issues that were passed upon at the trial, and again on the motions for a new trial, no useful purpose would be served on this appeal by a review or discussion in detail of the substance or effect of the contradictory statements. It is well established in this state that the granting or denial of a writ of coram nobis is highly 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 newly discovered evidence in relation to the issues litigated on the trial. As this court said in Ernst v. State, supra [181 Wis. 155, 193 N.W. 979],

“Under our system of criminal procedure permitting a defendant to move for a new trial, to test the correctness of the sentence by writ of error or by writ of habeas corpus, the granting of a writ of coram nobis should be exercised with the utmost caution and care by the trial court, and it should be granted only in cases where it quite clearly appears that an error of fact existed before judgment, but for which error the judgment would not have been entered.”

No...