Euclide v. State

• Decision Date: 06 June 1939
• Citation: Euclide v. State, 231 Wis. 616, 286 N.W. 3 (Wis. 1939)
• Parties: EUCLIDE v. STATE.
• Court: Wisconsin Supreme Court

231 Wis. 616

286 N.W. 3

EUCLIDE

v.STATE.

Supreme Court of Wisconsin.

June 6, 1939.

Error to review a judgment of the Circuit Court for Kewaunee County; Henry C. Graass, Judge.

Reversed.

Bastardy action commenced upon the complaint of Mildred Zimmerman against Arnold Euclide.A verdict of guilty was rendered on November 4th, 1936.Defendant moved for a new trial by a notice setting the hearing upon January 18th, 1937, which was more than sixty days after rendition of the verdict.Upon that hearing the trial court informally granted the motion on condition that defendant pay costs within thirty days.The costs were paid May 13th, 1937, and two days later the trial court signed an order setting the verdict aside and granting a new trial in the interest of justice.Thereafter, the state sued out a writ of error and the matter was heard and determined by this court in State ex rel. Zimmerman v. Euclide, 227 Wis. 279, 278 N.W. 535.This court dismissed the writ upon the ground that under the provisions of sec. 274.05, Stats., a writ of error will not lie in a civil action to review an intermediate order unless the order discharges or remands a person brought up by writ of habeas corpus.Thereafter, the trial court, considering that its order granting a new trial was without jurisdiction, vacated the order and on June 21st, 1938, entered judgment upon the verdict.Plaintiff in error thereupon sued out this writ of error to review the judgment.The material facts will be set forth in the opinion.

A. G. Murphy, of Kewaunee (G. F. Clifford, of Green Bay, of counsel), for plaintiff in error.

John E. Martin, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and L. W. Bruemmer, Dist. Atty., of Kewaunee, for the State.

WICKHEM, Justice.

The verdict upon which the judgment in this case is founded is based solely upon the testimony of the complaining witness.She testifies that she had never met plaintiff in error until October 20th, 1935; that she attended three dances with him, one on October 20th, 1935, the second on October 27th of the same year, and the third on November 10th, 1935; that she had intercourse with him on each of these occasions and that she had never had intercourse with him or anybody else before or since; that her last menstrual period was November 10th, which was the occasion of her last relations with plaintiff.The child was born August 21st, 1936, which would be two hundred eighty-five days from the date of the last intercourse, two hundred ninety-nine days from the date of the second, and three hundred five days from the date of the first relations.The evidence does not indicate anything unusual or abnormal with respect either to the mother or child.It is not controverted that complainant attended the dances in question with plaintiff in error.In addition to plaintiff in error, she was accompanied on each occasion by her sister, another girl, and two boys, and in each instance the party drove to the dance in a single car.The testimony other than that of complaining witness is that on each occasion the car was locked upon arrival at the dance, and that plaintiff in error did not have access to the keys.There is also testimony, the truth of which is admitted by complainant, that on October 27th, she left the dance hall with another boy, sat in the front seat of a car with him, and then got into the back seat and was there with him for a period of about three quarters of an hour.She denies, however, that she had relations with this boy.On the preliminary examination she denied that she had gone to a car with this boy, but later she admitted that this testimony was not true.Without going into details, the evidence of those who accompanied complainant and plaintiff in error to the dance is to the effect that plaintiff in error did not at any time leave the dance floor, that the car was locked, and that he had no access to the key or means of resorting to the car with her.He denies that he ever had sexual relations with complaining witness.

Upon the above facts there was clearly a jury question.There were, however, circumstances which...