Baker v. State

• Decision Date: 02 September 1879
• Citation: 2 N.W. 110,47 Wis. 111
• Parties: BAKER v. THE STATE
• Court: Wisconsin Supreme Court

2 N.W. 110

47 Wis. 111

BAKER v. THE STATE

Supreme Court of Wisconsin

September 2, 1879

ERROR to the Circuit Court for Iowa County.

This was a proceeding in the court below against Baker as the father of the bastard child of one Anna E. Swagger. Verdict and judgment having gone against Baker, he brought the case here by writ of error.

Judgment reversed and cause remanded for a new trial.

For the plaintiff in error, there was a brief by Strong & McArthur and oral argument by Mr. Strong.

The cause was submitted for the defendant in error on the brief of H. W. Chynoweth, Assistant Attorney General.

HARLOW S. ORTON, J. DAVID TAYLOR, J., dissented.

OPINION

ORTON, J.

The judgment in this case must be reversed on the evidence.

The testimony of Anna E. Swagger, the prosecutrix, is positive that her last menstruation was the first of September; that she had sexual intercourse with the defendant about two weeks thereafter, and with one C. Greenalsh about two weeks after that; that her child was born the 25th of May; and that the defendant is its father.

In such cases the paternity of the child is the main and material fact to be found by the jury (Speiger v. The State 32 Wis. 400), and this fact the jury must find beyond a reasonable doubt. Zweifel v. The State, 27 Wis. 396. Whatever the probabilities may be, from this evidence, that pregnancy resulted from the first act of sexual intercourse which was with the defendant, because of its being the nearest the termination of the period of menstruation, and of the longer time before the birth of the child, yet they are mere probabilities, and, by the best medical authorities, very questionable, and by no means without reasonable doubt. 2 Wharton & Stille, §§ 43, 44, 45 and 46, and cases cited.

The prosecutrix having had sexual connection with two persons within so short a time, it was impossible for her to testify which act produced pregnancy, and which person is the father of the child. Commonwealth v. M'Carthy, 2 Pa. Law J., 351; Commonwealth v. Fritz, 4 Pa. Law J., 219.

In view of these undisputed facts, and of the most creditable authorities, the jury could not have found the defendant guilty beyond a reasonable doubt. Physiological speculations natural probabilities, or merely probable cause, are quite insufficient upon the trial to establish the fact of paternity in such a case. There must be, from the very nature of such evidence,...