Kellar v. State

• Decision Date: 05 April 1921
• Citation: 182 N.W. 321,174 Wis. 67
• Parties: KELLAR ET AL. v. STATE.
• Court: Wisconsin Supreme Court

174 Wis. 67

182 N.W. 321

KELLAR ET AL.

v.STATE.

Supreme Court of Wisconsin.

April 5, 1921.

Error to Circuit Court, Oneida County; A. H. Reid, Judge.

Harry Kellar and Anna Kloes were convicted of adultery and fornication, and they bring error. Affirmed.

The plaintiffs in error, Harry Kellar and Anna Kloes, hereinafter called the defendants, were respectively convicted of the offense of adultery and fornication. Harry Kellar was a married man and Anna Kloes a widow. To review such conviction, they obtained separate writs of error, but by consent they are tried as one, since both depend upon the same evidence and rulings of the court.Martin, Martin & Martin, of Green Bay, for plaintiff in error Kloes.

H. F. Steele, of Rhinelander, for plaintiff in error Kellar.

Wm. J. Morgan, Atty. Gen., and A. J. O'Melia, Dist. Atty., of Rhinelander, for the State.

VINJE, J.

It is earnestly urged that the evidence does not sustain the conviction. It is true that there is no direct evidence of the offense, but the facts and circumstances furnish a sufficient basis for the jury's finding. The trial court was satisfied therewith, and we cannot say, in view of such finding and approval, that we entertain any serious doubt as to its correctness. It would not profit the legal profession to set out the evidence which furnished a sufficient warrant for the result reached by the jury. A conclusion as to the probative force of evidence is necessarily reached by a consideration of all the evidence. Hence to justify such conclusion all the evidence, or at least the substance thereof, must be stated. To do so is a laborious task, which, when done, is seldom of any future use. In the opinion of the writer it is therefore a far better practice for judges, in these busy days when the profession is literally inundated by a mass of legal opinions, to save their own time and energy for the study and exposition of questions of law than to spend it in the detailed statements of facts that are generally valueless as legal precedents because no other case is likely to present the same facts. It should not be inferred from this, however, that a statement to the effect that the evidence is held sufficient to sustain a finding or verdict is one lightly made, or that it may not have required hours or days of arduous toil to determine whether or not it can be justly made. That this court is mindful of its duty in this respect, especially in criminal actions, such cases as Gerke v. State, 151 Wis. 495, 139 N. W. 404,Bianchi v. State, 169 Wis. 75, 171 N. W. 639, and Bruno v. State, 171 Wis. 490, 177 N. W. 610, abundantly testify.

[1] No direct proof of venue was made and it is claimed that the defendants should be discharged on that ground. It is the better practice to prove venue by direct evidence, but failure to do so does not bar a lawful conviction where the venue laid can be inferred from circumstantial evidence. Corpus Juris states the rule thus:

“Venue may, like any other fact, be established by proof of facts and circumstances from which it may be inferred, direct evidence not being necessary. This is especially true where no direct issue as to the place where the offense was committed is made on the trial except by the plea of not guilty, and all persons concerned seem to take the venue for granted, and the evidence incidentally given strongly tends to show that the venue was properly laid, and there is no evidence to the contrary. So where no witness expressly...