Nelson v. State

• Decision Date: 06 December 1932
• Citation: 245 N.W. 676,210 Wis. 441
• Parties: NELSON v. STATE.
• Court: Wisconsin Supreme Court

210 Wis. 441

245 N.W. 676

NELSON

v.STATE.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Error to review a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Neal Nelson was adjudged to be the father of an illegitimate child, and he brings error.--[By Editorial Staff.]

Judgment reversed, with directions to grant a new trial.

On January 26, 1932, plaintiff in error, hereinafter called the defendant, was, upon a verdict of guilty and a denial of his motion for a new trial, adjudged to be the father of an illegitimate child born to one Wilma Rice on November 15, 1929. To reverse said judgment, the defendant sued out a writ of error.

FOWLER and WICKHEM, JJ., dissenting.Walker & Christenson, of Lancaster, for plaintiff in error.

John W. Reynolds, Atty. Gen., Fred Risser, Dist. Atty., Carl Christianson, Asst. Dist. Atty., and George F. Lange, all of Madison, for the State.

NELSON, J.

The defendant contends that the court erred (1) in sustaining the verdict of the jury; (2) in instructing the jury as to the presumption of innocence; and (3) in refusing to grant a new trial.

The complainant was delivered of a child on November 15, 1929. The complaint herein was made on October 29, 1931, nearly two years after the birth of said child, and long after the complainant had removed to the city of Madison from Grant county where the alleged intercourse with the defendant took place.

The complainant testified in substance that she had several acts of intercourse with the defendant in February, 1929, although wholly unable to fix exact dates or to associate said acts with any events other than one dance held at Fennimore some time during the month of February; that such intercourse took place in a Ford car, which she thought was defendant's, on the highways of Grant county; that she had never had intercourse with any other person; and that the defendant was the father of her child. During the month of February, 1929, when conception undoubtedly took place, since the child was a full-term normal child, the complainant was between eighteen and nineteen years of age, and was engaged in teaching a rural school in Grant county. She was a graduate of the Boscobel High School, and had completed a one year rural teacher's course at the State Teachers' College at Platteville. The complainant further testified that, while dancing with the defendant in May, 1929, she spoke to him about her pregnancy and of his responsibility therefor, but that he only laughed at her. She testified: “I started to tell him and he laughed at me and I decided that was the end.” She also testified that in March, April, or May, 1930, she met the defendant at another dance, and at that time told him that she had given birth to a child, and accused him of its parentage. It is undisputed that at no time after she became pregnant or after her child was born did she seek out the defendant for the purpose of charging him either with the responsibility for her condition or with his being the father of her child. Her meeting him at the dances in May, 1929, and in the spring of 1930, hereinbefore mentioned, was purely casual and accidental. She was not an ignorant unschooled country maiden. On the contrary, she had received a very considerable education. Although she knew where the defendant lived at all times between the discovery of her pregnancy in March, 1929, and the making of her complaint on October 29, 1931, she neither wrote him a letter nor made any deliberate attempts to get in touch with him or to bring home to him the charge of paternity. In June, 1929, however, after she had left Grant county and was residing in the city of Madison, she did write a letter to one Bob Hamilton, which concededly was never answered. Hamilton was produced as a witness upon the trial, and testified that he received a letter from the complainant, the contents of which were in substance as follows: “Dear Bob: I have not seen you for quite a while. I will write you and let you know that I am in a family way and you got me that way, and I would like to see you.” The letter was not produced upon the trial. There was evidence that it was either lost or destroyed, and the introduction of evidence as to its contents was permitted. The complainant admitted writing a letter to Hamilton, but denied that she charged him with being responsible for her condition. Her testimony, however, as to the contents of the missing letter, was, to say the least, weak and unpersuasive. She was asked: “Did you mention in that letter about your being pregnant?” and she answered: “Not that I remember.” “Q. That is, you might have said something about it, being pregnant, and you don't recall it? A. Yes.” Later on she was asked this question and answered as follows: “You want us to understand, without ever having gone with Bob Hamilton alone, you wrote a letter to him in June, just a few months before this child was born, and said you wanted to see him, wanted him to come to Madison, that is a fact, isn't it? A. Yes.” Upon the trial Hamilton testified that he had several acts of intercourse with complainant during the month of February, 1929. This testimony was disputed by complainant.

The complainant testified as hereinbefore recited that the acts of intercourse with defendant occurred in a Ford car on the highways of Grant county during the month of February, 1929. The defendant owned a Ford car of the kind described by complainant, but it was undisputed that defendant's car was put into winter storage late in December, 1928, and remained there until late in March. It also appeared without dispute that the farms of defendant's father and of a nearby neighbor for whom defendant worked for some time during the winter of 1929 were located near to county trunk Q, and at a distance of approximately eight miles from Fennimore, where complainant testified the dance was held from which she was taken by defendant in a Ford car. There was testimony which was apparently credible to the effect that during January, February, and March the byroads and county trunk Q near to which defendant resided were so badly drifted with deep snow as to be absolutely...