De Mund v. State

• Decision Date: 05 February 1918
• Citation: 166 N.W. 328,167 Wis. 40
• Parties: DE MUND v. STATE.
• Court: Wisconsin Supreme Court

167 Wis. 40

166 N.W. 328

DE MUND

v.STATE.

Supreme Court of Wisconsin.

Feb. 5, 1918.

Error to Circuit Court, Dodge County; Martin L. Lueck, Judge.

Bastardy proceeding by the State of Wisconsin against Bert De Mund. To review the judgment, defendant brings error. Judgment reversed, and cause remanded for new trial.

Judgment was entered in this action in the court below June 30, 1917, adjudging the plaintiff in error, hereinafter called defendant, to be the father of a bastard child born alive on the 13th day of September, 1916. The defendant brings the record here by writ of error for review upon errors assigned.E. A. Clifford, of Juneau, and A. W. Lueck, of Beaver Dam, for plaintiff in error.

W. C. Owen, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Claron A. Markham, Dist. Atty., of Beaver Dam, for the State.

KERWIN, J.

[1] The principal error assigned is that the court below excluded evidence offered by the defendant to the effect that during the time the bastard child was begotten, namely, during the fore part of December, 1915, the complaining witness, mother of the bastard child, associated with men other than the defendant, at times and under circumstances indicating that she might have had illicit intercourse with them.

Early in the trial counsel for defendant asked Mrs. Brown, with whom complaining witness boarded in December, 1915, whether the complaining witness stayed at home evenings while she was boarding with her. The question was objected to by counsel for the state as incompetent, irrelevant, and immaterial, and the objection sustained. The district attorney then stated to the court that counsel was trying to show general habits, to which counsel for defendant replied that he wanted to make a record. The trial judge stated that if he had made a mistake the question showed it. Counsel for defendant then stated that he would make the offer after recess; whereupon the judge again remarked that if he made a mistake counsel's question clearly showed it.

The following day, at the close of the evidence, counsel for defendant made the following offer:

“If the court please, I would like to make that offer that we wanted to make yesterday on the record with reference to Mrs. Brown. This is with reference to the testimony of Mrs. Mary Brown. We offer to prove by this witness that during the time that the complaining witness, Babe Lewis, stayed with her, which was during the first two weeks of December, 1915, that the complaining witness, Babe Lewis, was out evenings at least six out of seven days of each week, and that she was out until 2 and 3 o'clock in the morning, that she came with different gentlemen escorts.”

This offer was objected to as incompetent, irrevelant, and immaterial and not proper to be made at that time. The court then said:

“The record clearly shows that if there was anything in the record, that if they could show anything with reference to the relations between Breese and the complaining witness, that they were entitled to do so, but that outside of that her conduct was immaterial.”

It is plain from the record that the court intended to and did rule out all evidence of the conduct of complaining witness with other men than Breese.

The evidence ruled out and complained of was not ruled out on the ground that it was not seasonably offered, but upon the ground that it was not competent or material. The...