Menn v. State

• Decision Date: 21 May 1907
• Citation: 132 Wis. 61,112 N.W. 38
• Parties: MENN v. STATE.
• Court: Wisconsin Supreme Court

132 Wis. 61

112 N.W. 38

MENN

v.STATE.

Supreme Court of Wisconsin.

May 21, 1907.

Error to Circuit Court, Monroe County; J. J. Fruit, Judge.

Bastardy proceedings by the state against Benjamin Menn, in which he was found guilty and judgment awarded against him, and he brings error. Reversed and remanded.

Charge of bastardy laid by Louisa Veith alleging paternity of child born July 1, 1905. The evidence of prosecutrix was that on the evening of Sunday, October 16, 1904, she, in company with two other girls, attended church in the village of Norwalk, and that at the close of the services defendant joined her at the church door and walked along with her, allowing her companions to go ahead, whereupon he and she went into an obscure place, where intercourse was had upon which she predicates his paternity. She asserts most positively that at no other time did he have intercourse with her, and she offered evidence to show the impossibility of such an episode on any other Sunday evening within the period of possible conception. The defense consisted of proof that the witness was not at the village of Norwalk on the Sunday evening in question, but was at a neighboring village in company with others; the witnesses testifying to such events fixing the date by reference to certain church records and also by reference to the date of delivery of an organ at defendant's house which is shown by the railroad freight records. The prosecutrix's witnesses fix the date of the event to which they testified by the fact that it was one week before the defendant and certain friends went upon a journey, confessedly October 23d. One of her witnesses also fixes it with reference to the date when he bought a railroad ticket, which is also shown by the records of the railroad office. The jury found the defendant guilty, and judgment for the payment of certain sums of money was entered, to review which he brings writ of error.Howard Teasdale and Winter & Esch, for plaintiff in error.

Frank L. Gilbert, Atty. Gen., and J. E. Messerschmidt, State Law Examiner, for the State.

DODGE, J. (after stating the facts).

1. Errors assigned upon the trial court's refusal to rule that the evidence could not support a verdict of guilty must be overruled. While a large amount of evidence was introduced to establish defendant's alibi at the only time when it was claimed intercourse was had, and while that evidence is rendered very definite as to date by reference to certain records and other ascertained events, yet the prosecutrix's own testimony as to time, as also that of several corroborative witnesses, is no less positive and no less certainly connected with events the dates of which are hardly debatable. The jury must have found that some witnesses falsified or were mistaken, and the decision on that subject was with them. If they had been clearly instructed that they must acquit unless convinced beyond reasonable doubt that intercourse took place at the time or occasion testified to by prosecutrix, we could not say but that they might have been so convinced by the evidence.

2. Another error is assigned upon the final instruction in the following words; the italics constituting the exceptionable portion: “If you are not satisfied beyond a reasonable doubt under all the evidence that the sexual act took place between these parties on the 16th of October, 1904, at the place alleged, the defendant is entitled to an acquittal, unless you find from the evidence in this case that the defendant did have sexual intercourse with the complainant at some other time and place within the period of gestation.” There was absolutely no evidence of intercourse at any other time, and prosecutrix herself denied any such. The undisputed evidence for the defense negatived the occurrence at any other time of the accompanying events narrated by prosecutrix and in some degree corroborated by other witnesses. Indeed, the trial court so viewed the evidence, for elsewhere in his charge he instructed: “The date of the act of sexual intercourse between the complaining witness and the defendant is an important fact in this action, and there is no evidence that it occurred at any time except on the 16th of October, 1904. * * * The jury must decide this case upon the evidence given in court, and have no right to guess or speculate as to what the facts might be outside of the evidence.” We cannot escape the view that these instructions are hopelessly inconsistent. The jury were told at first that they could not guess or conjecture, and later that they need not acquit if they did guess or conjecture that intercourse had taken place otherwise...