State v. Wagner

• Decision Date: 21 June 1939
• Citation: 286 N.W. 544,232 Wis. 138
• Parties: STATE v. WAGNER.
• Court: Wisconsin Supreme Court

232 Wis. 138

286 N.W. 544

STATE

v.WAGNER.

Supreme Court of Wisconsin.

June 21, 1939.

Appeal from an order of the Superior Court of Dane County; Roy H. Proctor, Judge.

Proceeding by Henry Wagner against the State of Wisconsin, by writ of error coram nobis, to review conviction of carrying concealed and dangerous weapon. From an order denying the writ, the petitioner appeals.-[By Editorial Staff.]

Affirmed.

This appeal is from an order of the superior court of Dane County, entered April 22, 1938, denying appellant's motion for a writ of error coram nobis. The material facts are stated in the opinion.

Bert J. Dandoy, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Norris E. Maloney, Dist. Atty., and George Kroncke, Jr., Sp. Asst. Dist. Atty., both of Madison, for the State.

MARTIN, Justice.

Appellant was arrested on August 12, 1937, on a charge of carrying a concealed and dangerous weapon, to wit, an automatic pistol, in the town of Medina, in Dane County, Wisconsin. On the following morning, a complaint was signed and a warrant issued out of said superior court. The record shows that appellant was brought before said court on the 13th day of August, 1937, and arraigned on the charge aforesaid. Appellant entered a plea of guilty to the charge, whereupon the court adjudged defendant (appellant) guilty and imposed a fine of one hundred dollars and costs or in default of payment of said fine and costs, ordered that appellant be committed to the Dane County jail for not to exceed three months. Appellant paid said fine and costs, amounting in all to $105.95. On August 26, 1937, appellant filed in said court a motion accompanied by a petition to vacate and set aside the judgment and sentence of the court and for the return of the fine and costs paid. So far as the record discloses, no disposition was made of the motion to vacate and set aside the conviction and sentence. On March 12, 1938, appellant filed with said court a verified petition for a writ of error coram nobis. With said petition, appellant filed his affidavit, the material part of which is as follows: “Deponent further states that on the 13th day of August, 1937, he was before the Superior Court of Dane County, State of Wisconsin, Honorable Roy H. Proctor, Judge, presiding, on a complaint for carrying concealed weapons, in Dane County, State of Wisconsin, and that the records in the case set forth that he pleaded guilty of said charge and was found guilty by the court and duly sentenced thereon. That deponent states that at all times, both before and after, his conviction-the facts are that he denied ownership and possession of the weapon in question and denied his guilt at the time and place above set forth. Deponent further states that all of the proceedings had herein were held in the chambers of the court and that the clerk of said court should have entered a plea of not guilty for him under the facts as above set forth. ***”

The state filed several counter affidavits, some made by persons who were present in court at the time of appellant's arraignment for the purpose of testifying on behalf of the state. These affidavits as well as the court record show that appellant pleaded guilty of the offense with which he was charged. A hearing was had on appellant's application for a writ of error coram nobis, on April 22, 1938. In this connection, the court docket entry is as follows:

“Apr. 22, 1938. An application for a writ of error coram nobis in behalf of the defendant, Henry H. Wagner, being brought on for hearing in this April term, 1938 and on April 22, 1938 and the said defendant appearing by Bert J. Dandoy of Milwaukee, his attorney, and the State appearing by George Kroncke Jr., Assistant District Attorney, for Dane County, and the defendant having filed an affidavit in his own behalf and the State having filed affidavits by George Kleinsteiber, Gerald Marek and Lloyd A. Juve in opposition to said application and arguments having been presented by counsel.

“Now, Therefore, On motion of George Kroncke, Jr., Assistant District Attorney for Dane County,

“It Is Ordered that the application...