Baker v. State
| Citation | 47 Wis. 111,2 N.W. 110 |
| Parties | GEORGE BAKER, JR., PLAINTIFF IN ERROR, v. THE STATE OF WISCONSIN, DEFENDANT IN ERROR. |
| Decision Date | 02 September 1879 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Error to circuit court, Iowa county.
M. M. Strong, for plaintiff in error.
Attorney-General, for defendant in error.
The judgment in this case must be reversed on the evidence.
The testimony of Ann 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. Greenlast 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. Zweigle 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 & Stiles, §§ 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. McCarty, 2 Penn. L. Rep. 135; 4 Penn. L. Rep., Commonwealth v. Tritz, 43.
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, great, and certainly very reasonable, doubt as to this main fact. It is urged that if this is to be the rule, a conviction can never be attained when more than one person has had sexual intercourse with the complainant about the same time. This consequence of the rule is far less important and serious than the wrong and injustice of a conviction upon insufficient evidence.
In such a case the question is not whether the defendant is...
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