State v. Greco

• Decision Date: 27 October 1955
• Citation: 72 N.W.2d 661,271 Wis. 54
• Parties: STATE of Wisconsin, Respondent, v. Thelma GRECO, Appellant.
• Court: Wisconsin Supreme Court

Page 661

72 N.W.2d 661

271 Wis. 54

STATE of Wisconsin, Respondent, v. Thelma GRECO, Appellant.

Supreme Court of Wisconsin.

Oct. 27, 1955.

John P. McEvoy, Kenosha, for appellant.

Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., for respondent.

BROADFOOT, Justice.

In addition to the arguments advanced to the trial court in support of the motions for a new trial the defendant now claims that there was no compliance with the provisions of sub. (2) of sec. 357.26, Stats., which reads as follows:

'Upon arraignment and before plea, the court shall advise any person charged with a felony of his right to counsel and that if he is indigent the court will appoint counsel at his request. A record of such advice and of the defendant's reply, if any, shall be made in the docket or in a transcript of the proceedings.'

Said section was commented upon by this court in the case of State ex rel. Doxtater v. Murphy, 248 Wis. 593, at page 601, 22 N.W.2d 685, at page 688, wherein this court said:

'* * * The trial court was clearly in error in failing to advise the defendant of his rights. The defendant, the petitioner here, took no appeal from the judgment and sentence of the court. If such an appeal had been taken undoubtedly error would have been confessed and the case remanded to the trial court.'

Apparently the above statement was unduly optimistic. Instead of confessing error the state now contends that there was a sufficient compliance with the statute. The record shows otherwise. She was not advised of her right to counsel but was merely asked if she wished counsel. She was not advised, according to the record, that if she was indigent counsel would be furnished for her, nor was she specifically advised of her rights to cross-examination, to call witnesses, or to testify in her own behalf. Affidavits were filed in connection with the motions for a new trial. One of said affidavits was by the district attorney, in which he stated generally that the defendant was advised of her rights. That does not show compliance with the statute, which requires that a record of such advice shall be made in the transcript of the proceedings or in the court docket.

The state further contends that it is necessary to advise a defendant of the right to counsel at public expense only when the defendant makes a showing of indigency. The statute requires that this advice be given to any defendant who appears without counsel so that if the defendant is indigent he can make application to the court.

The state further contends that noncompliance with the above statute should not be considered upon this appeal because the question was not raised in the trial court. The state relies upon State v. Vinson, 269 Wis. 305, 68 N.W.2d 712, 70 N.W.2d 1. That case and others correctly state the general rule. However, as indicated in the following quotation from Cappon v. O'Day, 165 Wis. 486, 490, 162 N.W. 655, 657, 1 A.L.R. 1657, there are exceptions to this rule:

'* * * This court sits here to do justice between litigants. For the purpose of orderly administration and the attainment of justice, certain rules are established. Any rule the enforcement of which results in a failure of justice should be carefully scrutinized and not blindly adhered to unless the abandonment of it will work more injustice than will follow if it be adhered to. One of the rules of well-nigh universal application established by courts in the administration of the law is that questions not raised and properly presented for review in the trial court will not be reviewed on appeal. 3 C.J. 689. The reason for the rule is plain. If...