Gillis v. State
| Citation | 238 N.W. 804,206 Wis. 150 |
| Parties | GILLIS v. STATE. |
| Decision Date | 10 November 1931 |
| Court | Wisconsin Supreme Court |
Writ of error to review the judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.
Elias Gillis was adjudged the father of the infant child of one Elma Langenhahn, and he brings error.--[By Editorial Staff.]
Reversed and remanded for a new trial.
Action begun February 4, 1931; judgment entered June 17, 1931. Bastardy. The plaintiff in error, hereinafter called the defendant, appeals from a judgment adjudging him to be the father of the infant child of one Elma Langenhahn.O. L. Ringle, of Wausau, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Walter A. Graunke, Dist. Atty., of Wausau, for the State.
[1] At the time of intercourse, the complaining witness was twenty-one years of age, weighed about one hundred twenty pounds, and was in vigorous normal health. She testified that the last act of intercourse with the defendant was on April 6, 1930, two days after her monthly sickness. She also had her customary menses ending on the 6th of May, except that they lasted two days instead of the usual four days. When her menses did not recur in June, she suspected that she was pregnant. While she testified to previous acts of intercourse with the defendant, she was positive that no act occurred after April 6, 1930. The complaining witness said nothing about her pregnancy to any of her relatives until she told her parents about Christmas time and made no charges against the defendant, although she testifies she had it in her mind to do so. Early in the month of February she consulted a physician at Marathon City, went to see the district attorney, and on the 4th of February she went to the city of Milwaukee to be confined, where she was deliveredof a full term, normal child, weighing eight pounds two ounces, on February 20, 1931. There is no history of any illness of the complaining witness nor any circumstance that would tend to indicate anything but a perfectly normal, regular pregnancy.
The only expert sworn was Dr. J. M. Freeman of Wausau, who testified that the average pregnancy from the time of conception is 280 days; that in exceptional cases babies have been in utero for ten months. Upon cross-examination, the doctor testified that he had one patient who had gone one month overtime; that at the expiration of the normal period active labor began, was then suspended, and one month later she was delivered of a child. That was the only case in his experience which he could recall. He also testified that the fact that the child of the complaining witness was slightly overweight would indicate that “it was probably a little past due.”
There was no evidence indicating that the child when born had any other characteristics than those to be expected in a normal child. The plaintiff testified that she had never at any time had intercourse with any other man. Upon her testimony, the period of pregnancy was 320 days, being 12 days beyond 11 lunar months, the ordinary period being 10 lunar months.
The question presented here is whether or not upon this testimony the jury may find beyond a...
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...the average being 270 days. A period of 320 days, testified to by the complaining witness, was determined in Gillis v. State, 206 Wis. 150, 238 N.W. 804 (Wis.Sup.Ct.1931), to be extremely rare and as establishing only a possiblity of paternity. In re McNamara's Estate, 181 Cal. 82, 183 P. 5......
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...birth. Souchek v. Kaar, 11 N.W. 150; Masters v. Marsh, 19 Neb. 458, 27 N.W. 438; Sang v. Beers, 20 Neb. 366, 30 N.W. 258; Gillis v. State (Wis.) 238 N.W. 804. D. Chase, for respondent. The determination of a motion is not always express but may be implied. 42 C.J. 511; Townsend v. Angellott......
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