Porath v. State

• Decision Date: 20 June 1895
• Citation: 63 N.W. 1061,90 Wis. 527
• Parties: PORATH v. STATE.
• Court: Wisconsin Supreme Court

90 Wis. 527

63 N.W. 1061

PORATH

v.STATE.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Ernest Porath was convicted of incest, and brings error. Reversed.

The plaintiff in error was tried upon an information containing two counts: First, for rape committed upon his daughter Ida Porath, July 10, 1891; and the second for incest committed with her on the same date; they not being lawfully married to each other, and the defendant then having a lawful wife, Frederica Porath, still alive, and the said Ida being then and there the daughter of the said defendant and his said wife Frederica. The defendant pleaded in abatement of the first count that he had not had a preliminary examination for the offense charged in it, and had not waived the same; but the court, at the trial, overruled the plea; and, the defendant having pleaded not guilty to both counts, he moved that the district attorney be required to elect on which count he would proceed to trial. The court denied the motion. The evidence on the plea in abatement showed an arrest and preliminary examination upon the charge of incest, stated in the second count, and that the evidence then taken tended to show that the intercourse that had taken place with the prosecutrix was had by force and violence of the defendant, and against her will. At the trial, the prosecutrix, Ida Porath, testified, after some preliminary details, to the particular transaction in question, which she said took place in July, 1891, in the hay mow of the defendant's barn, where she was pitching hay; that her brother threw the hay up to her, and the defendant came to help her. She was at that time 13 years old, and 16 at the time of the trial; and the record shows that she answered mainly by monosyllables, “Yes” or “No,” and in a low tone, and the repetition of questions would indicate with some hesitation. After stating that the defendant came to help her pitch the hay further back, she was asked: “Q. What did he do then? Did he lay his hands on you at all? A. Yes. Q. Well, after he laid his hands on you, what did he do then? A. He was trying to throw me down. Q. Did he throw you down? A. Yes. Q. What did he do then? Did he disturb your clothing in any way? A. Yes. Q. What did he do with it? What did he do with it? Well, speak right up. The Court: Go on, and tell what he did. District Attorney: That is what you are here for,--to tell what you know about it. A. He was going to pull up my clothes. Q. Well, did he pull up your clothes? A. Yes, sir. Q. What more did he do? Well, did he have sexual intercourse? (Objected to as leading. Objection overruled.) A. Yes, sir.” She then testified that he told her he would kill her if she mentioned it; that she resisted him, pushed him back, and told him to stay back; that she cried out, and he held her with one arm around her, and the other over her mouth; that she did all she could to prevent him; and also testified to actual penetration; that they were alone until her mother came into the barn, and listened, and called: “Ernest Porath, have you not got any sense?” She testified that the defendant had had intercourse with her before, but not afterwards, and that she complained the next day after the transaction in the barn to her mother of it, and had told others about it; that she had a feeling against him, and wanted to get even with him; that she afterwards went away to Oconto, with a young man named Keefort, and lived in a house there (not a bad house), because the defendant would not let her alone; that he had forbidden her going with Keefort; that, while she lived in Oconto, she went by the name of Ida Thompson; that she afterwards came back, and lived with the defendant awhile, and, after going away again, she was arrested, and confined in jail for two months for stealing; that she told the police officer and two of her brothers that she had been induced or instructed to make the complaint against the defendant, but that the charge was not true, and that the defendant had not had carnal intercourse with her; that she told the police officer so because he said, if she did not say so, she would be sent to the reform school; that the defendant was cruel to his children, and beat them with a stick, or kicked them, just as it came to his mind. “Q. They have been driven away from home by his beating them, and threatening to kill them, have they not? (Objected to as leading, etc. The Court: It shows why the girl should go away from home. Overruled.) A. Yes, sir; he treated me in the same way; has beaten me with a club, and kicked me, prior to my leaving home.” The court allowed the district attorney, against defendant's objections, to show that Bertha Baker made complaint against the prosecutrix for stealing; that Bertha had been living at defendant's after he had parted with his wife; that the charge against witness was for stealing aprons and rings; that she did steal some of them, but not all that Bertha claimed, and she had gotten them all back again. Bertha Baker, on behalf of the defendant, testified that the prosecutrix told her after the defendant's arrest on this charge, two or three times, that she made the charge against her father because she wanted to get some of his property; that she asked her if she had been to see her father, and she said, “No,” and that she told her she would be sorry after awhile, and she told witness to “go to h____ l”; that she told witness her father did not have anything to do with her; that her mother and the folks talked her up to make the charge. On cross-examination, this witness admitted that she was the mother of an illegitimate child by one of defendant's sons. She denied that she was living in adultery with the defendant, but did sleep in the same room with him, and the other children slept there, and he dressed and undressed in it; that she was not married to nor trying to marry him; that she had not held herself out to the public as Mrs. Porath; that she had written letters in which she had signed herself as Mrs. Porath; wrote one for fun, which she signed Bertha Porath. The letter was identified, and offered in evidence, and received, against defendant's objections, to show her relations to the defendant, and her interest and bias as a witness. The letter stated the witness was married long ago, and contained indecent and grossly obscene statements. She denied that she had had carnal intercourse with the defendant, and testified that she worked for him for wages, the same as any other girl. The police officer testified that the prosecutrix denied to him that the defendant had had sexual intercourse with her, and said that she had said so because he had not been using her well at home, and she got no clothes, and he had whipped her. Her brothers Otto and Frank both testified that she had said that the defendant had not had intercourse with her; that she had stated that he had because she could not get her clothes or bureau away from home, and she also said that he had not committed this crime. The defendant testified in his own behalf, and denied positively that he had ever had intercourse with the prosecutrix, and denied in detail her statements as to what occurred at the barn, and that he ever, at the barn or elsewhere, attempted to take liberties with her or have connection with her; that Bertha Baker had worked for him; and, against the objection of his counsel, that they slept in the same room. The prosecutrix, being recalled, testified, among other things, to having on one occasion caught the defendant and Bertha Baker in bed together. The court charged the jury, among other things: “There is some testimony in the case tending to show that the defendant may have been guilty of improper relations with the witness Bertha Baker. You will remember that the defendant is not being tried for any such offense. That testimony was admitted in the case to show the relations of the witness Bertha to the defendant, so as to throw light upon the credibility of her testimony; and you should only consider it and the facts disclosed by it as it has a bearing upon the question you are trying here; that is, whether the defendant is guilty of the offense with which he stands charged.” The jury acquitted the defendant of the charge of rape in the first count, and found him guilty of the offense charged in the second count of the information. After motion for a new trial, on various grounds, and a motion in arrest of judgment, had been overruled, the defendant was sentenced to 10 years' imprisonment, and he sued out a writ of error, and assigned various errors referred to in the opinion.T. R. Hudd, for plaintiff in error.

W. H. Mylrea, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for the State.

PINNEY, J. (after stating the facts).

1. The plea in abatement to the first count of the information was properly overruled. It appeared that both counts were founded upon the same transaction, and were introduced to meet the legal aspects of the evidence as it might be produced at the trial, and in order that the defendant might not escape conviction of any offense which it might be found the defendant had committed by the single transaction in question. The statute (section 4653, Sanb. & B. St.) makes it the duty of the district attorney to inquire into and make full examination “of all facts and circumstances connected with any preliminary examination, as provided by law, touching the commission of any offense whereon the offender shall have been committed to jail, or recognized or held to bail, and to file an information setting forth the crime committed, according to the facts ascertained on such examination and from the written testimony taken thereon, whether it be the offense charged in the complaint on which the examination was had or not.” The facts disclosed upon the preliminary examination of the defendant warranted the...