Dingman v. State
| Decision Date | 24 February 1880 |
| Citation | 4 N.W. 668,48 Wis. 485 |
| Parties | DINGMAN v. STATE OF WISCONSIN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, La Fayette county.J. K. Williams and P. A. Orton, for plaintiff in error.
Attorney General, for State of Wisconsin.
Upon a trial in the circuit court for La Fayette county the plaintiff was adjudged to be the father of a bastard child of one Ellen Waistell, and was required to pay the sum of $350 for the past and future support and maintenance of such child, and the costs of the prosecution amounting to the sum of $43.69, and to give bond with sufficient sureties for the payment of said sums; on default thereof to be committed to the county jail of said county until he shall perform such judgment or be otherwise discharged according to law.
The plaintiff in error caused a bill of exceptions to be settled in the action, and brought the record of said action to this court by writ of error, and assigns as error that the learned circuit judge misdirected the jury as to the sufficiency of the evidence necessary to convict in a proceeding of this kind, and that his charge in other respects was erroneous; that the court erred in refusing to continue the case, upon the application of the plaintiff in error, and in refusing to grant a new trial on his application upon the ground of newly discovered evidence. The application for a continuance was, we think, properly denied. The defendant had continued the case over at least one term, and although he knew that the witness might be material, he had taken no means to summon him until a few days before the day fixed for the trial, when it appears the witness had left the state to avoid being summoned. It is also evident from the affidavit of the defendant, upon which his application for a continuance was made, that the witness, if present, could not have been compelled to testify to any of the matters which he alleges he expected to prove by him, and the fact that he had left the state to avoid the subpœna would naturally lead the court to believe that if present he would not volunteer to testify to that which the law would not compel him to do.
The motion for a new trial upon alleged newly discovered evidence we also think was properly denied. The proof shows that the defendant had information before he went to trial that the person he now claims could give material evidence in his favor might be a material witness for him on the trial. Such being the fact he should have procured his attendance at the trial, or, if that was impossible, he should have asked a continuance in order to procure his attendance. Having been informed at least three weeks before the trial that this person could give evidence which would be material to his defence, he should have procured his attendance, or applied for a continuance if such attendance could not be then had, and having gone to trial without attempting to procure his attendance or asking for a continuance on account of his inability to have him present, the new trial asked in order to procure his testimony was properly denied. In order to present clearly the exceptions taken by the plaintiff in error to the charge of the learned circuit judge, given to the jury upon the trial of this action, it is, perhaps, necessary to state the whole charge. It was brief, and as follows:
“1. The question is: Is the defendant the father of the child? If he is, your verdict should be guilty.
2. If you are not satisfied, from a preponderance of evidence, that he is the father of the child, you should say not guilty.
3. The mother, Ellen, may, very certainly, be presumed to know who begat the child. You are to consider whether every instinct and emotion of maternal love and affection does not naturally rise up in revolt at the idea of fastening, by perjury, a false paternity upon the offspring of her body.
4. The defendant denies the charge. You are to judge between them, and give the preponderance to the one that you think, under the circumstances, entitled to the most credit.
5. If the defendant is the father, it probably, according to human experience, must have been begotten at an earlier period than that fixed by the girl. It is proper, in this connection, to consider whether it is not easier to remember a potential fact than to remember its precise date.
6. It is considered well established that it is not impossible for a child to be born healthy and live to maturity at seven months from conception, although it is not according to the common course of nature.
7. The fact of the girl having testified to the month of July, before she was delivered, is a circumstance to be considered regarding her credibility. You will consider whether the explanation, that she intended to say June, is reasonable and satisfactory.
8. It is said that it is a charge easy to make. Is is true that any woman, however lost to virtue and to truth, is likely to charge a man with having had sexual intercourse with her, when it is not true?
9. If, from sheer recklessness, a woman can be regarded as capable of fastening a false paternity upon her child, is it probable that she would select a man who has children as old as herself, rather than some one near her own age, it being shown that younger men were equally accessible upon whom to fasten the false charge?
10. If you argue that the prosecution of the defendant is purely mercenary, it is proper to consider whether the defendant is a more eligible victim to fasten the assumed fraud upon than others against whom the charge might be made, and if not, what becomes of the argument?
11. With regard to the...
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...portion of the charge was prejudicial error on the ground that it was argumentative, and invaded the province of the jury. Dingman v. State, 48 Wis. 485, 4 N. W. 668;Conway v. Mitchell, 97 Wis. 290, 72 N. W. 752;Schutz v. State, 125 Wis. 452, 104 N. W. 90. By the charge the jury were not pe......
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...jury their liberty to disregard it that it amounted to a direction to decide a controverted issue of fact in a certain way. Dingman v. State, 48 Wis. 485, 4 N. W. 668;Conway v. Mitchell, 97 Wis. 290, 72 N. W. 752. There can be no doubt that after a protracted trial a fair summarization of t......
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