State v. Kopacka
| Decision Date | 05 February 1952 |
| Citation | 30 A.L.R.2d 476,51 N.W.2d 495,261 Wis. 70 |
| Parties | , 30 A.L.R.2d 476 STATE, v. KOPACKA. |
| Court | Wisconsin Supreme Court |
Criminal action by the state against Joseph Kopacka on the charge of burglary under sec. 343.10, Stats. Upon a verdict by the jury finding said defendant guilty as charged, he was sentenced to imprisonment. He appealed from the judgment.
Eugene J. Sullivan, Dennis M. Sullivan David V. Jennings, Jr. and Harry M. Kleczka, all of Milwaukee, for appellant.
Vernon W. Thomson, Atty. Gen., William J. McCauley, Dist. Atty., Harold J. McGrath, Sp. Asst. Dist. Atty., Milwaukee, for respondent.
The information alleged that on October 26, 1949, Joseph Kopacka and two accomplices committed the crime of burglary in the nighttime under sec. 343.10, Stats., by breaking into and entering a dwelling of Donald Clark; and alleged in a second count that Joseph Kopacka had theretofore been convicted of burglary. He pleaded not guilty and on August 18, 1950, he served a notice under sec. 355.07, Stats., on the district attorney that he intended to rely upon an alibi as a defense to the charge in the information. Upon the trial of the case in October, 1950, there was proof that on the night of October 26, 1949, Joseph Kopacka, Louis Kopacka and Frank Maranowicz went to Clark's dwelling and Maranowicz and Louis Kopacka forced open a window through which Louis Kopacka and Maranowicz, carrying two flashlights, entered the dwelling and stole some money. Upon a trial the jury found each of the defendants guilty and judgment was entered on October 4, 1950, sentencing them to terms of imprisonment. Joseph Kopacks appealed from the judgment.
On this appeal Joseph Kopacka contends the court erred in refusing to allow him to submit further corroborative evidence in support of a second alibi; and that the court erred in allowing the prosecuting attorney to cross-examine on surrebuttal Louis Kopacka concerning a prior conviction after he had admitted the same.
Sec. 355.07, Stats. (enacted in 1949), provides:
Under sec. 355.07, Stats., Joseph Kopacka served the following notice of alibi upon the district attorney on August 18, 1950:
'You will Please Take Notice, that I, Joseph Kopacka, one of the defendants in the above entitled action at the time of the trial of said action, intend to rely upon an alibi as a defense to the charges contained in the information filed by you against me in the Municipal Court for Milwaukee County, Wisconsin.
'* * * You Will Please Take Further Notice that at the time the alleged offense was alleged to have been committed I was not at the place the alleged offense was alleged to have been committed, but was in the process of moving furniture from Milwaukee, Wisconsin, to Waukegan, Illinois; and that following named persons will be relied upon by me to establish the fact that I was so occupied at the time the alleged offense was committed, namely: Emil Kopacka, of 1634 West McKinley Avenue, Milwaukee, Wisconsin; Lorraine Kopacka, of 1809-C North 2nd Street, Milwaukee, Wisconsin; Helen Bohn of 4413 North 3rd Street, Milwaukee, Wisconsin, and Paul Zeifirakee of 1300 West North Avenue, Milwaukee, Wisconsin.'
Written in after the typewritten portion of that paragraph is the name 'Louis Kopacka, State Prison, Waupun, Wisconsin.'
'* * * Dated this 18th day of August, A.D., 1950, at the City and County of Milwaukee, State of Wisconsin.'
And it appears to be subscribed by Joseph E. Kopacka, who is the named defendant on the trial.
Thus by serving that notice upon the district attorney on August 18, 1950, Joseph Kopacka stated that at the time of the commission of the offense charged in the information he was 'moving furniture from Milwaukee, Wisconsin, to Waukegan, Illinois.' Upon receipt of the notice the district attorney directed certain police officers connected with the case to make a careful and thorough investigation respecting the alibi. The state relied upon that notice of alibi and as the result of such notice and the state's thorough investigation it was carefully and fully prepared to meet that alibi on the trial.
However, on the trial defendant Joseph Kopacka testified that on October 26, 1949, when the burglary was committed he was moving furniture from his mother's home at 2322 North Teutonia Avenue, Milwaukee, to 2306 West State Street, Milwaukee, and he gave the names of the witnesses. Thus he sought to substantiate a new alibi without giving any previous notice thereof to the district attorney. Emil Kopacka testified that he and Paul Zeifirakee assisted Joseph Kopacka in such moving. But on cross-examination he did not know how many trips were made--possibly three, maybe four or five; and he denied that he had ever been arrested and convicted of a criminal offense. Joseph Kopacka's attorneys then called Lorraine Kopacka, wife of Emil, as a witness on behalf of Joseph Kopacka, and then the district attorney objected to her proof in support of the new alibi testified to by defendant on the ground that the state received no notice thereof as required by sec. 355.07, Stats. Defendant's counsel argued there was substantial compliance with the statute. In that connection the following colloquy took place:
'The Court: How have you complied with the provision of the statute that notice is to be served on the District Attorney 'stating particularly the place where he claims to have been when the crime is alleged to have been committed?'' Joseph Kopacka's attorney replied 'He was moving furniture from Milwaukee to Waukegan.'
'The Court: Do you contend that this is a compliance with the statute?' Kopacka's attorney replied: ...
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