“prefer” that instruction be given
How later courts described this case
- “prefer” that instruction be given
Written by the judges who cited it.
The opinion
Beilfuss, J.
(dissenting in part). I join the partial dissent filed by Mr. Justice Gordon and in addition thereto I dissent to those portions of the court’s opinion which subject the retrial of the case to the exclusionary rules of Miranda v. Arizona (June 13, 1966), 384 U. S. 436 , 86 Sup. Ct. 1602, 16 L. Ed. (2d) 694.
In Johnson v. New Jersey (June 20, 1966), 384 U. S. 719 , 86 Sup. Ct. 1772, 16 L. Ed. (2d) 882, it is stated: “We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago.” (June 13, 1966). In all of our cases, and elsewhere, in considering the problems of double jeopardy, when a new trial has been ordered we have considered it to be but one case, a mere continuation of the original proceeding until the judgment is final. 1 One of the obvious purposes of Miranda is to upgrade police practices insofar as affording the accused his constitutional protection. Some practices now prohibited by Miranda were legally acceptable at the time of the alleged criminal act, at the time of the custodial interrogation, and at the commencement of his trial. The arrest and interrogation were in October, 1964; the trial commenced in May of 1965. I do not believe it is the intention of Miranda *447 to reach back to challenge otherwise legal police procedures on the dates set forth.
I further dissent from that portion of the majority-opinion which suggests it was unfortunate that the medical experts for the state did not express their opinions in reference to the theories and tests- of insanity as suggested by the defendant and his medical experts.
The state’s medical experts testified in response to questions which limited the inquiry to the Esser test— under the law of this state that was the legal test. If the opinions of the state’s medical experts would have been of assistance to the defendant he most certainly could have reached them by cross-examination — this he did not do. I know of no rule of law that makes it incumbent upon the state or its witnesses to express opinions beyond the legal definition of the subject under inquiry.
I believe the defendant was fairly tried and convicted upon ample credible evidence and would affirm the judgment.
State v. Witte (1943), 243 Wis. 423 , 10 N. W. (2d) 117 .