25 N.W. 529 (Wis. 1885), Osgood v. State

• Citation: 25 N.W. 529, 64 Wis. 472
• Opinion Judge: COLE, C. J.
• Party Name: OSGOOD, Plaintiff in error, v. THE STATE, Defendant in error
• Attorney: The cause was submitted for the plaintiff in error on the brief of Charles D. Smith, and for the defendant in error on that of the Attorney General.
• Case Date: December 01, 1885
• Court: Supreme Court of Wisconsin

Page 529

25 N.W. 529 (Wis. 1885)

64 Wis. 472

OSGOOD, Plaintiff in error,

v.

THE STATE, Defendant in error

Supreme Court of Wisconsin

December 1, 1885

Argued October 20, 1885.

ERROR to the Circuit Court for Polk County.

The information contained two counts, the first charging the defendant with the crime of rape, and the second charging an assault with intent to commit that crime, upon his daughter, a girl about thirteen years of age. The defendant was found guilty under the first count. Other facts are stated in the opinion.

Judgment affirmed.

The cause was submitted for the plaintiff in error on the brief of Charles D. Smith, and for the defendant in error on that of the Attorney General.

OPINION

COLE, C. J.

Though that ground is not assigned in the motion for a new trial, that the evidence is insufficient to sustain the conviction, yet this point is strongly relied on in the argument of counsel for the defendant below. But if the point had been formally made and considered by the trial court, it could not have prevailed in view of the evidence set forth in the bill of exceptions. The direct and positive testimony of the complaining witness, if believed by the jury, is amply sufficient to support the verdict. The jury must have believed her testimony to have found as they did. And whatever may be said against the credibility of her statements as to the time and place the crime charged in the information was committed, we cannot say that these statements are so improbable as to be unworthy of credit. It is true, the crime is a very grave one, especially considering the relation of the parties and the age of the complaining witness. But the jury must have given credit to her statements, and considered them sufficient to establish the truth of the charge; so that the objection that the verdict is unsupported by evidence would fail, even if properly raised upon the record.

The first ground assigned for a new trial is that the jury was not regularly drawn and summoned. We are not clear as to what irregularity is relied on in support of this objection, but infer that counsel suppose the trial was at a special term ordered by the circuit judge pursuant to sec. 2426, R. S. But this was not the case. The defendant was tried at the regular term of the circuit court for Polk county, in December, 1882 (see ch. 90, Laws of 1882), and we...