# State v. Wyss

> Wisconsin Supreme Court · June 28, 1985 · 124 Wis. 2d 681

URL: https://www.frixlaw.com/law-library/cases/9527305

## Case

- **Full name:** State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Elmer F. Wyss, Defendant-Appellant
- **Court:** Wisconsin Supreme Court
- **Decided:** June 28, 1985
- **Citations:** 124 Wis. 2d 681; 370 N.W.2d 745; 1985 Wisc. LEXIS 2407
- **Precedential status:** Published
- **Opinion:** Concurrence by Callow
- **Judges:** William A. Bablitch
- **Cited by:** 124 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493 (1990).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9527305

## Opinion text

WILLIAM G. CALLOW, J.
(concurring). I concur with the result and reasoning of the majority opinion. I write separately to address the dissent’s discussion of the classes of cases in which discretionary reversal may be granted.
The majority opinion discusses the two instances, as set forth in the statute and in case law, in which discretionary reversal is appropriate. They are: (1) whenever the real controversy has not been fully tried or (2) whenever it is probable that justice has for any reason miscarried. Page 735. The dissent seeks to create a third category of cases in which discretionary reversal may be granted, notwithstanding the statutory language to the contrary. The creation of such a category also runs directly counter to past cases decided by this court.
Relying on Paladino v. State, a 1925 case, State v. Hintz, a 1930 case, and Maahs v. Schultz, a 1932 case, the dissent concludes that, when the circumstances of a case “raise doubt about the proceedings sufficient in *744 the court’s view to justify a trial before a new jury” {Infra, p. 754, Abrahamson, J., dissenting), the reviewing court does not have to find a substantial probability of a different result at the new trial. However, all three of these cases specifically based their reversal on the court’s conclusion that justice had miscarried. See Paladino v. State, 187 Wis. 605, 606 , 205 N.W. 320 (1925); State v. Hintz, 200 Wis. 636, 642 , 229 N.W. 54 (1930); Maahs v. Schultz, 207 Wis. 624, 638 , 242 N.W. 195 (1932). The dissent also fails to note that Lock v. State, 31 Wis. 2d 110 , 142 N.W.2d 183 (1966), a case decided in 1966 and relied upon by this court since that time, unequivocally established the rule to be followed for determining when a miscarriage of justice has occurred: There must be a finding of a substantial probability that a new trial would produce a different result. Id. at 118 .
I am authorized to state that Justices Roland B. Day, Donald W. Steinmetz, Louis J. Ceci, and William A. Bablitch join in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9527305. Public record. Not legal advice.