Frances Miller, aged thirty-two, had, on August 13, 1962, after nearly fourteen years of marriage and three children, commenced a divorce action against the defendant, aged thirty-nine. Family trouble had occurred frequently and the parties were separated. Subsequently, the defendant, Claude D. Miller, saw his wife and Elmer Kohler in taverns together and heard his wife was associating with Elmer Kohler.

On Saturday, October 6, 1962, at approximately 9:45 p.m. Frances Miller and Elmer Kohler were shot and killed at the residence occupied by Frances Miller and her children at 1415 Logan avenue, Marinette, Wisconsin.

Immediately prior to the shooting and killing Frances Miller, defendant's wife, and her boyfriend, Elmer Kohler, together with Shelby Keill, Jr., the thirteen-year-old nephew of Frances Miller, and John Kohler, the twelve-year-old son of Elmer Kohler, were gathered in the kitchen of the Miller home concluding their evening meal.

The testimony disclosed that the defendant came into the kitchen, said nothing, pulled a 12-gauge shotgun from behind his back and shot Kohler, then shot Frances Miller. Each victim was in turn shot again.

Both Shelby Keill, Jr., and John Kohler unequivocally stated that Claude Miller was the one who fired the shots that killed Mrs. Miller and Elmer Kohler, the boys having witnessed the killings.

After the shooting the boys ran from the house. Shelby ran to the home of a neighbor, Elwood E. Bricker, and reported that Claude Miller had shot Mrs. Miller and Kohler. Shelby saw the defendant leave the house, carrying his gun.

Bricker called the police. The police arrived shortly thereafter as did Dr. Clark Boren. They found Mrs. Miller and Elmer Kohler dead. The search for the defendant Claude Miller then began. Miller was placed under arrest at Marinette General Hospital after he appeared there at about 1:30 a.m., on October 7, 1962, complaining of a pain in his side.

Claude Miller was then taken to the sheriff's department where he was examined by Doctor Boren to determine whether or not he was intoxicated. A blood sample was taken also, and Doctor Boren determined that he was not intoxicated but had been drinking.

No evidence was introduced on whether or not the defendant had consumed any intoxicants between the time of the shooting and his appearance at the hospital, almost four hours later.

The record shows that on Sunday morning, October 7, 1962, Sheriff Kohlman spoke with the defendant who said he could not remember anything except that he had been drinking beer. He stated that he did not remember getting his gun, loading it, going to the house or shooting the victims. He did remember (as stated) seeing the children in the house and breaking the gun and hiding it in a hedge. The shotgun was found after the shooting by Officer Thedick in some bushes approximately three and one-half blocks from the Miller home.

At trial, a state crime laboratory firearms expert testified that, in his opinion, the four shotgun shells found at the scene of the crime had been fired from the shotgun found in the bushes. The defendant admitted that he owned a 12-gauge shotgun which looked like the death weapon. No other weapon was introduced.

The record further shows that on Sunday, October 7, 1962, the defendant was also interviewed by the district attorney in the presence of Sheriff Kohlman. At that time Claude Miller was advised of his right to remain silent and that anything he said could be used against him in court. A statement was taken from defendant Miller which was admitted into evidence without objection. The statement told of defendant's activities before and after the shooting on October 6, 1962. The statement also contained defendant's claim to a lack of memory. In the statement, Miller had a faint recollection of seeing his wife, Kohler, and some "kids," and also a faint recollection of hiding a gun in some hedges.

A complaint and warrant on October 8, 1962, for each murder marked the commencement of the two actions herein. On that morning, the defendant was brought before Magistrate HARRY E. WHITE, county judge. The defendant was advised of his right to counsel and he requested that counsel be appointed for him.

Following the preliminary hearing on October 16, 1962, defendant, being represented by counsel, was bound over for trial in the county court.

That same afternoon defendant Miller was arraigned and pleaded not guilty and not guilty by reason of insanity.

The defense attorney filed a petition for a judicial inquiry into the sanity of the defendant.

Pursuant to sec. 957.13, Stats., the court ordered the defendant to be committed to Winnebago State Hospital for observation.

The hospital report, upon completion of the examination, indicated that defendant was able to stand trial, that he was without psychosis or organic brain damage; and that he was sane.

On November 30, 1962, the defendant moved for a change of venue. This motion was supported by defendant's affidavit claiming community prejudice and adverse pretrial publicity. Three copies of local newspapers were submitted as evidence along with the defendant's affidavit. The trial judge at that point, HARRY E. WHITE, denied the motion for change of venue, finding that there was no adequate showing of prejudice. However, the trial court made it very clear that the motion could be made again if the voir dire examination of the jury panel indicated that the accused could not receive a fair and impartial trial in Marinette county.

Immediately following the trial court's denial to change venue, the defendant filed an affidavit of prejudice. Judge WHITE withdrew from the case and Judge BRUCE F. BEILFUSS was appointed as trial judge.

Judge BEILFUSS, pursuant to sec. 957.27, Stats., appointed Dr. James F. Caffrey, a psychiatrist, to examine Miller and testify as the court's expert witness on the question of the defendant's sanity at the time of the commission of the crimes.

The jury trial commenced on December 26, 1962. No motion to change venue was presented to Judge BEILFUSS; the jury was easily and quickly chosen.

The state called 14 witnesses, including the two eyewitnesses, and two psychiatrists from the Winnebago State Hospital who testified that in their opinion the defendant was legally sane at the time the crimes were committed.

Claude Miller testified on his own behalf, again claiming faulty memory. Alfred Monroe, an associate of the defendant, was also called by the defense. Although he testified that Miller was drinking on October 6, 1962, he also testified that the defendant appeared "normal."

At the close of the trial, four possible verdicts were submitted to the jury. These were guilty of first-degree murder, guilty of second-degree murder, not guilty, and not guilty by reason of insanity.

Claude Miller was found guilty of first-degree murder on both counts. No motions nor request for time to file motions after verdict were made.

HANLEY, J.

The first issue raised is whether the trial court abused its discretion in denying the defendant's motion for a change of venue, and is there a probability that the defendant received less than a fair trial by an impartial jury?

It is argued that defendant was denied an impartial trial because of a deep-seated pattern of community prejudice engendered by common knowledge of the defendant's character and by adverse pretrial publicity.

Sec. 956.03(3), Stats., states that a trial court "may" order a change of venue because of community prejudice. The statutory language therein makes it very dear that a motion for change of venue is addressed to the discretion of the trial court; and this court will not interfere unless an abuse of discretion is demonstrated. State v. Nutley (1964), 24 Wis.2d 527, 129 N.W.2d 155, certiorari denied, 380 U.S. 918, 85 Sup. Ct. 912, 13 L.Ed.2d 803; Schroeder v. State (1936), 222 Wis. 251, 267 N.W. 899; State v. Smith (1930), 201 Wis. 8, 229 N.W. 51; and Krueger v. State (1920), 171 Wis. 566, 177 N.W. 917.

In the instant case, on November 29, 1962, defendant, upon returning from Winnebago State Hospital, filed an affidavit requesting a change of venue claiming that he could not receive an impartial trial. The record demonstrates that the only evidence presented to the trial court in support of this claim was three copies of local newspapers, the latest of which was published on October 17, 1962.

These articles were not condemned as being inaccurate, even though a quick glance at the stories demonstrates that they contained prejudicial matter. Following the hearing on defendant's motion, on November 30, 1962, the trial court stated as follows:

"The court is not satisfied that the publicity complained of has created community prejudice to the point where it tends to prevent the accused from having a fair and impartial trial in this community. The motion for a change of venue to an adjoining county is, therefore, denied, but without prejudice to a renewal of the motion if it shall appear on the voir dire examination of the jury panel that the accused cannot have a fair and impartial trial in Marinette County."

It is said in Krueger v. State, supra, at page 575, that:

"The difficulty of impressing upon the record a true concept of the public sentiment in the county is manifest. Just as the trial judge is in a better position to weigh the testimony of witnesses who appear before him, so is he in a better position to judge of the public sentiment of the county. He is on the ground and in a position to sense, in a way that this court cannot, the true sentiment of the community and to judge much more correctly whether it is such as to prevent a fair trial on the part of the defendants."

We are of the opinion that the trial court did not abuse its discretion in denying the defendant's motion for change of venue.

The denial of the motion was a conditional denial, allowing a renewal of the motion if the voir dire examination of the jury panel demonstrated that the accused could not receive an impartial trial.

The defense did not demonstrate that even one person was adversely affected by the publicity, let alone that the community was so prejudiced that the defendant could not receive an impartial trial.

The voir dire was completed in less than half a day. The jury of 12 and one alternate was selected, with apparent ease, from the 42 jurors called. Twenty-four of the prospective jurors were eliminated by peremptory challenges and only five were excused by the court for cause. The voir dire in this case was not made part of the record.

In the case of Bianchi v. State (1919), 169 Wis. 75, 93, 171 N.W. 639, where "the sentiment in the community was not the best for an impartial trial," the court said:

". . . we cannot say that the trial court abused its discretion by refusing the change conditionally, as it did. The request was not renewed upon going to trial, and it appears the jury was secured in less than a day and only about thirty-seven jurors were examined. The apparent difficulty or ease of securing a jury can be taken into account in passing upon the alleged abuse of discretion in refusing a change of venue. In view of the probable conditions existing elsewhere than in Milwaukee and the ease with which the jury was secured, we perceive no error in the court's ruling."

Defendant Miller claims that the newspaper articles denied him a fair trial because those articles revealed to the public information which was inadmissible in evidence. The defendant is speaking of his record of prior arrests, his statement to the district attorney, and the photographs of the scene of the crimes and the defendant.

We believe the strategy of defense counsel of introducing Miller's past record in evidence and of not objecting to the introduction of the statement and photographs at trial has precluded the defendant from now raising this, argument of not receiving a fair trial because of the pretrial publicity.

In Oseman v. State (1966), 32 Wis.2d 523, 529, 145 N.W.2d 766, it is stated:

"The trial court could have concluded that the fact of Dupree's plea of guilty being disclosed in the newspaper article could not have influenced the jurors in view of their having heard and properly so the testimony of various police officers describing Dupree's exit from the tavern through the broken pane of glass in the front door and having been wounded in flight when he failed to heed the officers' warning to stop."

See also Commodore v. State (1967), 33 Wis.2d 373, 379, 380, 147 N.W.2d 283.

There is no evidence that any juror saw the newspaper articles in question. However, even if the articles had been read by the jurors, it did not necessarily deprive the defendant of a fair trial since the information was properly presented to the jury as testimony or exhibits at the trial.

The difficult question in this case is whether or not, even though trial Judge HARRY E. WHITE did not abuse his discretion in refusing to order a change of venue, there was a probability that the defendant was denied due process of law because he failed to receive a fair trial by an impartial jury.

In Sheppard v. Maxwell (1966), 384 U.S. 333, 352, 86 Sup. Ct. 1507, 16 L.Ed.2d 600, the court in quoting from Estes v. Texas (1965), 381 U.S. 532, 85 Sup. Ct. 1628, 14 L.Ed.2d 543, said:

"`It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.'"

It is clear that the court in Sheppard, supra, was looking at the totality of circumstances to determine if there was a probability of prejudice raised. The court, although it stated that the cure for adverse publicity lies within certain remedial measures, did not base its reversal solely on the trial court's abuse of discretion in failing to order a change of venue, but it was mainly predicated upon the failure of the state and the trial court to afford Sheppard a fair trial.

The Sheppard Case, supra, is based on an extreme set of facts of prejudicial publicity during the trial; and the facts in that case are not comparable to those in the instant case.

The newspaper articles in the instant case, while not quantitatively nor qualitatively similar to those in the Sheppard Case, are improper. However, they are not sufficient to warrant a reversal and a new trial. State v. Nutley, supra; State v. Woodington (1966), 31 Wis.2d 151, 142 N.W.2d 810, 143 N.W.2d 753; State v. Alfonsi (1967), 33 Wis.2d 469, 147 N.W.2d 550.

In the instant case we have the additional fact that the defense introduced the questionable evidence, such as the previous criminal record and raised no objection to the introduction of matters referred to in the pretrial publicity.

We think the defendant did receive a fair trial before an impartial jury. He was convicted only because of the overwhelming testimony produced by the state.

The defendant's second argument alleges that he was denied his constitutional right to the assistance of counsel and that the trial court improperly admitted oral and written statements into evidence. There is no merit to either contention.

Defendant, at the initial appearance, asked that counsel be appointed. Counsel was appointed for him prior to the time of the preliminary hearing at public expense.

There was complete compliance with all federal and state constitutional requirements in respect to the right to counsel as it existed at that time. Gideon v. Wainwright (1963), 372 U.S. 335, 83 Sup. Ct. 792, 9 L.Ed.2d 799; White v. Maryland (1963), 373 U.S. 59, 83 Sup. Ct. 1050, 10 L.Ed.2d 193; State ex rel. Offerdahl v. State (1962), 17 Wis.2d 334, 116 N.W.2d 809.

Insofar as the oral and written statements of the defendant are concerned, defendant relies on the cases of Escobedo v. Illinois (1964), 378 U.S. 478, 84 Sup. Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona (1966), 384 U.S. 436, 86 Sup. Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R. 3d 974. These cases do not apply.

Escobedo applies only to trials commencing after June 22, 1964. See Browne v. State (1964), 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169, certiorari denied, 379 U.S. 1004, 85 Sup. Ct. 730, 13 L.Ed.2d 706; Holloway v. State (1966), 32 Wis.2d 559, 146 N.W.2d 441. Miranda, supra, applies only to trials commenced after June 13, 1966. See Johnson v. New Jersey (1966), 384 U.S. 719, 86 Sup. Ct. 1772, 16 L.Ed.2d 882; Reimers v. State (1966), 31 Wis.2d 457, 143 N.W.2d 525.

Also, it must be remembered that defendant's statements were placed in evidence without objection.

The defendant's final contention is that he should be granted a new trial in the interest of justice because on the basis of hindsight his defense attorney might have done things differently. One of these things referred to was the introduction of defendant's testimony enumerating his own prior criminal record. The introduction of defendant's criminal record in this case apparently was a defense tactic to inform the jury of his previous confinement in Winnebago State Hospital.

This court, in Le Barron v. State (1966), 32 Wis.2d 294, 302, 303, 145 N.W.2d 79, said:

"Defendant now criticizes trial counsel for persisting in the insanity and feebleminded defense and introducing the foregoing prejudicial evidence in the record in furtherance of that defense in face of the overwhelming evidence that defendant was sane and not feebleminded. . . .

" . . . As noted in Pulaski v. State, `Often after trial, charges of incompetency are directed toward counsel because it appears other tactics than those chosen might have been more helpful to the accused.' This seems to be just such an objection to a tactic, and, even assuming that defendant's present view of tactics is the correct one, it would not seem, in light of the trial counsel's total performance, to satisfy the test of inadequacy, that this court has laid down, viz., `Unless the representation of counsel is so inadequate and of such low competency as to amount to no representation, a new trial cannot be granted on that ground.'

"Furthermore, there would seem to be arguable merit in the trial counsel's tactic. . . . Under these circumstances, trial counsel might have found himself criticized by later appellate counsel if he had not done everything in his power to get an insanity acquittal."

We conclude that there was no miscarriage of justice. The state clearly proved the defendant guilty beyond a reasonable doubt.

By the Court. — Judgment affirmed.

BEILFUSS, J., took no part.