22 N.W.2d 483
Supreme Court of Wisconsin.March 15, 1946. —
April 12, 1946.
APPEAL from a judgment and an order of the circuit court for Washington county: EDWARD J. GEHL, Circuit Judge Affirmed.
Statutory rape. The defendant was charged with on the 10th day of July, 1944, at Washington county, being a person of full age, unlawfully and carnally knowing and abusing
Page 577
one Lucille Benike of the age of twelve years, in violation of sec. 340.47, Stats. The defendant waived preliminary examination and was bound over to the circuit court. When arraigned, the defendant pleaded not guilty. This it appears was solely for the purpose of securing further time. After the information was filed, the defendant made a confession which he said was made voluntarily with full knowledge of his constitutional rights, without any force or any threats. When the case was called in circuit court, the defendant filed a plea of guilty and, after hearing character witnesses, the court sentenced him to an indeterminate term of from one to five years at Waupun.
While the defendant had the benefit of counsel before he entered his plea, after plea and sentence he procured the services of other counsel who now represent him. The defendant then moved to vacate the judgment and for a new trial. He also applied for executive clemency and his application was denied. From the judgment dated October 18, 1944, and from the order dated September 19, 1945, denying defendant’s motion for a new trial, the defendant appeals.
Charles L. Mullen of Milwaukee, for the appellant.
For the respondent there was a brief by the Attorney General, William A. Platz, assistant attorney general, and G. E. Otten, district attorney of Washington county, and oral argument by Mr. Platz.
ROSENBERRY, C. J.
It appears without dispute that defendant had the benefit of counsel before he entered his plea of guilty. Upon the hearing on the motion for a new trial, counsel for defendant testified that he had no doubt of the defendant’s guilt, and denied the allegations made by the defendant in the affidavit supporting his motion for a new trial as to not having advised the defendant of the seriousness of the offense, denied making any promise to him that he would be placed on probation.
Page 578
The principal contention made on behalf of the defendant is that there was a medical examination of the child and that that examination did not disclose facts sufficient to establish an offense. We do not think it is necessary to set out the details of this matter. The granting or denial of the motion for a new trial was largely within the discretion of the trial court, and it is clear from the record that there was no abuse of discretion on its part in denying the motion for a new trial. There is not even a pretense that there was any error so far as the judgment was concerned. The claim that there was a denial of due process is also completely refuted and has no basis of fact upon which to rest. The facts stated by the defendant in his confession freely made negative the contention made here by counsel on his behalf. The condition found by the examining physician strongly supports the facts stated by the defendant in his confession.
By the Court. — The judgment and order appealed from are affirmed.
RECTOR, J., took no part.