Lavery v. Crooke

• Decision Date: 04 June 1881
• Parties: LAVERY v. CROOKE.
• Court: Wisconsin Supreme Court

52 Wis. 612

9 N.W. 599

LAVERY

v.CROOKE.

Supreme Court of Wisconsin.

Filed June 4, 1881.

Appeal from circuit court, Columbia county.

The respondent was the father of Katie, and the appellant was her uncle, he having married her father's sister. The appellant had no child by his wife, and from the summer of 1875 to November, 1878, Katie was in the habit, a portion of the year, of stopping with her uncle and aunt at their request, but without wages, or any agreement as to service. In November, 1875, she went home to her father's, where she remained until about April 20, 1879, when she returned to her uncle's, where she remained until about June 22, 1879, when she returned to her father's, where she remained, and about three weeks thereafter, to-wit, July 13, 1879, she was delivered of a child. By the verdict the appellant was convicted of having debauched and carnally known Katie about October 15, 1878, while she was stopping at his house, and for which the jury assessed her father's damages at $1,500. This appeal is to reverse the judgment entered upon that verdict, for alleged errors. The issue was joined in the action August 26, 1879, and the cause was noticed for trial by the plaintiff at the October term of the circuit court for Dodge county for 1879, when the same was continued by the defendant upon his affidavit for want of a material witness. The cause was then noticed for trial by the plaintiff at the February term of said court for 1880, when upon the affidavit of the defendant of the prejudice of the judge of that court, the venue was changed to the circuit court for Columbia county, in which last-mentioned court the cause was noticed for trial by the plaintiff for the May term thereof for 1880. When the cause was reached in its order on the calendar at said last-mentioned term, the defendant moved for a continuance upon his affidavit in the usual form, on the ground, in effect, that March 17, 1880, he was informed by one John Brennan, who then resided in the same town with the defendant, that he, the said Brennan, did have carnal intercourse with Katie, October 13, 1878, and also at another time during that fall, and would testify to the facts, and who was then living with his mother, and promised the defendant that he would be present at the trial and so testify, and that the same was reiterated from time to time until May 3, 1880, when the defendant informed him that the court would commence May 11, 1880, when he expected him to be present, and was assured that he would; that May 7th the defendant procured a subpœna, and on the afternoon of Saturday, May 8th, delivered it to the sheriff, with directions to serve the same on John Brennan, as well as other witnesses; that on Monday, May 10th, said sheriff served the subpœna on other witnesses and sought to serve the same on Brennan, but ascertained that the Sunday before, being May 9th, Brennan had clandestinely absconded and departed from this state; that Katie had sworn in a bastardy proceeding against the defendant that she had never had carnal intercourse with any other person than the defendant. The court denied the motion.A. G. Cook and H. W. Lander, for respondent.

E. P. Smith and A. Scott Sloan, for appellant.

CASSODAY, J.

It is urged by counsel that the affidavit set forth was strictly in compliance with rule 20 of the circuit court, and hence that the defendant was entitled to a continuance as a matter of right. By the rule, the affidavit was required to show, among other things, that the defendant had used due diligence to prepare for trial, and the nature and kind of diligence used. Of course, the court was required to pass upon the sufficiency of such statements. In view of the circumstances of the case, and the continuances already obtained by the defendant, we are not prepared to hold that it was error to deny the motion. It is conceded that Katie was only a few months over 15 years of age at the time of intercourse, and that she was then, and had for some months been, stopping at the house of the defendant. It must be presumed that a little girl of such tender years would have the watchful care of uncle, as well as aunt, in the absence of guilt on his part. There is no pretence that Brennan ever lived at or near the defendant's at the time of the intercourse, and the affidavit contains no suggestion of any place or opportunity of his meeting Katie, October 13, 1878, or any other time. The statement is that he was working for his mother, who was a neighbor of the plaintiff, where Katie was not at the time stopping.

Katie was at the defendant's house from April 20, 1879, until three weeks of the time of her delivery, of which the defendant must necessarily have been informed, and yet he states in his affidavit that “ he commenced making inquiries and investigations concerning the chastity” of Katie immediately after this action was commenced, which was August 7, 1879, and although ascertaining conduct on her part which might warrant suspicion as to her purity of character, yet he was unable to ascertain that she had had intercourse with any person whatsoever until informed by John Brennan, March 17, 1880, more than eight months after the child was born. In view of the fact that Katie was at the defendant's at the time the intercourse must necessarily have taken place, and the prior continuance and change of venue, and the story would seem to be at least suspicious. It is difficult, moreover, to comprehend what motive Brennan could have, even had he committed the offence, to voluntarily make disclosure of his own criminality and disgrace, to one who was already implicated and being prosecuted, while he himself was unsuspected. Had he actually done so, and the defendant, John Crooke, had in fact been innocent of the offence, it would seem that his own sense of duty to himself, as well as the uncle of the little girl, would naturally have induced him to investigate the truth of Brennan's statement, with the view of bringing him to justice and vindicating himself. But nothing of the kind is disclosed; on the contrary, if the statement was ever made, he seems to have kept it to himself for more than 50 days, apparently, so that it would not be investigated. Besides, if Brennan did make such disclosure, the defendant must have known that he could not compel him to testify to his own criminality, and that in all probability he would decline to do so, even if present at the trial. The defendant, apparently, did not even tell his counsel of the alleged disclosure. Had he done so he would probably have been informed that he could not compel Brennan to give such testimony, and that this court had just before held that it was no error to refuse a continuance for the absence of such a witness. Dingman v. State, 48 Wis. 485.

It was suggested by counsel, on the argument, that had a continuance been granted the defendant might have been able to procure the deposition of Brennan to be taken in some other state, where the fear of his own prosecution would have been less imminent. But as the giving of such testimony would at most have been a matter of favor to the defendant, he should have sought to procure it in the way suggested during the 54 days between the alleged disclosure and the sitting of the court. The secrecy and non-action of the defendant for so long a period, in a matter so vital to his own reputation and standing as a man, naturally excite grave doubt as to whether any such disclosure was ever made, although it may be that Brennan promised to testify as stated, but as the time approached his heart apparently weakened, and he made his escape. We are clearly of the opinion that there was no error in denying the application for a continuance. It is urged by counsel that there was no evidence tending to show that Katie was in the service of her father at the time of the intercourse. She was at that time only 15 years of age. There is no pretence that the defendant had any right to her service, nor to detain her from her father against his wish. She was merely stopping with the defendant and his wife, at their request and for their pleasure, at a time when she was not needed by her father and mother, as she had from time to time during the three years previous. There is evidence that she worked at her father's when at home. We have carefully examined the several authorities cited by the learned counsel to show that Katie was not at the time of the intercourse the servant of the plaintiff. In most of them the daughter was of age and under contract of service to another.

In Grinnell v. Wells, 7 M. & G. 1033, the daughter had permanently left her father with no intention of returning, and there was no pretence of loss of service alleged or proved. Tindal, C. J., said: “The declaration in this case contains no allegation of the loss of the service of the daughter.”

In Carr v. Clarke, 2 Chitty, 260, the father had moved away from his former home, leaving his daughter, who was under age, in the service of another, and a nonsuit was granted on the ground that there was no evidence tending to show an intention to return to the father. Bayley, J., said: “The cases go upon the express ground that the relation of master and servant must exist, but the evidence may be very slight. The parties must stand in the relation of master and servant, although a temporary absence may not be sufficient to destroy that relation.”

In Bartley v. Rechtmyer, 4 N. Y. 38, a step-father sought to recover on account of intercourse with his step-daughter, about 19 years of age, and who left his house about two years before, with no intention of returning; and it was held, in an able opinion by Bronson, C. J., that “the action for seduction is founded on the loss of service, and in order to maintain it there must be an actual or constructive relation of master and servant. And in order to constitute the constructive relation, the master must have the...