McClellan v. State

• Decision Date: 15 May 1886
• Citation: 66 Wis. 335,28 N.W. 347
• Parties: MCCLELLAN v. STATE.
• Court: Wisconsin Supreme Court

66 Wis. 335

28 N.W. 347

MCCLELLAN

v.STATE.

Supreme Court of Wisconsin.

May 15, 1886.

Error to circuit court, Waushara county.

David S. Ordway, for plaintiff in error.

H. W. Chynoweth, Ass't Atty. Gen., for the State.

ORTON, J.

This is a prosecution for bastardy. The evidence is very similar to that which is common in such cases. The mother, as the main witness for the state, testified positively that the defendant was the father of her child, and to the circumstances under which it was begotten. The child was born August 8, 1885, full grown. The menstruation of the mother had been regular early in the month, and occurred in October, 1884, the last time until after the child was born. In October the defendant had sexual connection with the complainant more than once at his father's house in the nighttime in her bed-room, which was near his own, and he had been in the habit of visiting her room for that purpose nearly every week for some time, and continued to do so afterwards until she left off working at the McClellan house, about the first of December. The complainant was about 18 years old, was one of a Polish family of 12 children, and had been in this country only one or two years, and, before going to work at McClellan's, on the ninth day of May, 1884, had worked out doors. These are the facts testified to by the complainant, strictly pertinent to the issue. It was only material that the defendant had intercourse with her at or near the proper time which in the course of nature might have reasonably made him the father of the child. The corroborating evidence was that the defendant had intercourse with the complainant the first time in June previously, in an open buggy, late at night, while he was taking her home to his father's house, and then afterwards under similar circumstances; and there was evidence by another witness that the defendant took her to ride towards his home on these occasions late at night. The defendant denied positively all these acts of intercourse, and that he did not so ride with the complainant in June, but did in August; and there was testimony of the mother and sister of the defendant, and other inmates of the family, that they never saw anything suspicious about the conduct of the parties at the house, night or day. This evidence has been stated in order to show the bearing of the instructions asked and given, upon which the main exceptions are predicated.

The first request of the defendant's counsel was to charge as follows: “In this case both the mother of the child and the defendant are competent witnesses. The mother swears that the defendant is the father of the child, and the defendant swears that he is not. Then, if they are of equal credibility, the one, so to speak, offsets the other, and unless further evidence given by other witnesses for the prosecution, or circumstances proven, satisfy you beyond a reasonable doubt of the defendant's guilt, your verdict must be in favor of the defendant.” This instruction was very properly refused, for the reasons:

(1) The mother and the defendant are not of equal credibility. The mother is a mere witness for the state in a proceeding to compel the father of her child to support it, and save the town from such a burden. She has no pecuniary interest, beyond that of any other witness, in the result of the prosecution. Before the statute allowed a party to testify in his own behalf he was excluded from being a witness on the ground of his pecuniary interest in the result; while the mother in...