Daegling v. State

• Decision Date: 09 January 1883
• Citation: 56 Wis. 586,14 N.W. 593
• Parties: DAEGLING v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

56 Wis. 586

14 N.W. 593

DAEGLING

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Error to circuit court, Washington county.

This is a proceeding under the bastardy act. The prosecutrix is one Margaret Little. On July 18, 1879, she made complaint, in writing, on oath that she was then pregnant with a child, which, if born alive, would be a bastard, and charged therein that the plaintiff in error is the father of such child. He was thereupon arrested, and held to answer the charge in the circuit court. A trial in that court resulted in a verdict of guilty. A motion for a new trial was denied, and judgment of affiliation and for the maintenance of the child was entered against the accused upon the verdict. The accused has sued out a writ of error to bring the proceedings and judgment here for review. The testimony on the trial, and the rulings of the court, are sufficiently stated in the opinion.W. J. Turner, for plaintiff in error, Ferdinand Daegling.

P. O'Meara, for defendant in error, the State of Wisconsin.

LYON, J.

1. The prosecutrix, in her complaint, charges that the plaintiff in error, Daegling, begat her child on or about March 17, 1879, and she testified on the trial that it was begotten between March 14 and March 18 of that year, and that the child was born on the tenth of the following November. Taking the immediate date of March 16th as the time of the connection, 239 days only intervened before her delivery. The testimony is that the usual period of gestation is 280 days. Hence, if her statement is true, the birth of the child was premature by about 40 days. Three physicians testified as witnesses on the trial. They agree that there are certain appearances of a newborn infant which indicate whether or not the birth is premature.

Dr. Hunt, who attended the prosecutrix when the child was born, was called on behalf of the prosecution, and testified that he thought the child was not fully developed. He mentioned several conditions of the child on which he based his opinion, among which were that he thought it had no hair, and its fingers and toe nails were not fully developed. Dr. Marston and Dr. Senn were called by the accused. The former saw and examined the child the evening of its birth; the latter, a week or two later. Both expressed the opinion that it was a fully-developed child; a nine-months child, as Dr. Senn puts it. Dr. Marston and Dr. Senn were each asked whether a physician would base an opinion as to the maturity or immaturity of a child upon the want of eyebrows, hair, and toe nails at its birth; whether an opinion based on the want of these would be a scientific medical opinion. The court sustained an objection to these questions. We think the questions should have been answered. It was a vital inquiry in the case whether the child was fully developed, or whether it was prematurely born. If fully developed, it could not have been the child of Daegling. The jury were so instructed. The question went to the grounds, or some of them, upon which Dr. Hunt predicated his opinion that the child was prematurely born. The witnesses to whom the questions were put showed themselves competent to testify as experts in that behalf, and their answers, had they been allowed to answer, might have satisfied the jury that their diagnosis of the case was correct, and that of Dr. Hunt erroneous. We also think the question should have been answered irrespective of the testimony of Dr. Hunt. The testimony sought to be elicited may have satisfied the jury that the statement of the prosecutrix, thus tested by known scientific facts, was...