Johnson v. State

• Decision Date: 05 November 1907
• Citation: 113 N.W. 674,133 Wis. 453
• Parties: JOHNSON v. STATE.
• Court: Wisconsin Supreme Court

133 Wis. 453

113 N.W. 674

JOHNSON

v.STATE.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Error to Circuit Court, Price County; John K. Parish, Judge.

Bastardy proceeding by the state of Wisconsin against Thomas Johnson. From a judgment for plaintiff, defendant brings error. Affirmed.Barry & Barry, for plaintiff in error.

Frank L. Gilbert, Atty. Gen., A. C. Titus, Asst. Atty. Gen., and W. K. Parkinson, Dist. Atty., for the State.

TIMLIN, J.

The first error assigned is that the court erred in the reception and rejection of evidence, and this is attempted to be supported by showing that the court, against repeated objections of defendant's counsel, permitted the district attorney to ask leading questions of the complaining witness, and permitted the district attorney to ask the witness Erick Erickson if he drank anything yesterday. We consider these rulings within the discretion of the court below and insufficient to support the assignment of error.

The second assignment of error is that the court erred in its remarks on the relevancy and weight of testimony during the trial. This is attempted to be supported by showing that the court during the cross-examination of the witness Erick Erickson asked: “Are you the man I declined to naturalize to-day on account of being drunk?” But the court in his instructions to the jury seems to have removed any cause of complaint on account of this question by instructing the jury to disregard the fact that citizenship papers had been denied to the witness Erickson. The remarks of the court in denying the motion of the defendant to dismiss the case for lack of proof of birth of a living child were based on the testimony and we think proper.

The third assignment of error is that the court erred in permitting the complaining witness to hold a baby in her arms on exhibition before the jury while giving her testimony. There was no attempt to offer the baby in evidence, or to exhibit it to the jury, and the supposed infraction of the legal rules consisted merely in permitting the complaining witness to hold her baby in her arms while giving her testimony. This was not error, and does not bring the case within the rule of Busse v. State, 129 Wis. 171, 108 N. W. 64, and cases cited.

The fourth assignment of error is that “the court erred in its remarks before the jury in ordering the arrest of the defendant's witness Erick Erickson, and in directing the clerk to set aside his, Erick Erickson's, naturalization papers.” It is argued that this affected the credibility of the witness with the jury. The witness Erick Erickson was called on behalf of the defendant, and, after having been warned by the court of his right to refuse to incriminate himself, testified that he had unlawful sexual relations with the complaining witness during March and April, 1905. Upon cross-examination by the district attorney, he testified substantially that he had been arrested and convicted for drunkenness, whereupon the court asked the witness the question above referred to, and the witness denied that he was the man that the court declined to naturalize on account of being drunk. The district attorney then said: “I have here a warrant of arrest of the witness for fornication.” The court said: “The sheriff is instructed to arrest the witness Erick Erickson, and take him in custody, and I hereby direct the clerk to set aside his naturalization papers.” The defendant's counsel objected to the remarks of the court in the presence of the jury, as tending to prejudice them against the defendant. The court said: “No man can become a citizen of the United States unless he proves by two witnesses that he is a man of good moral character and well behaved. The statement he has made here shows that he is not well behaved. The objections to the remarks of the court in ordering the...