Riley v. State

• Decision Date: 12 May 1925
• Parties: RILEY v. STATE.
• Court: Wisconsin Supreme Court

187 Wis. 156

203 N.W. 767

RILEY

v.STATE.

Supreme Court of Wisconsin.

May 12, 1925.

Error to Circuit Court, Pierce County; George Thompson, Judge.

John Riley was found guilty of being the father of an illegitimate child, and he brings error. Reversed and remanded, with directions.W. G. Haddow, of Ellsworth, for plaintiff in error.

H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Kenneth S. White, Dist. Atty., of River Falls, for the State.

JONES, J.

This is a prosecution for bastardy. The prosecutrix was married to Julius Rinke in 1918. She only lived with him a short time. Before April, 1923, she had been living in Minnesota, but about April 6, 1923, she came to Prescott, Wis., and commenced living as a housekeeper in the home of the Riley brothers, Anthony Riley and the plaintiff in error hereinafter called the defendant. She remained there until December 29, 1923. According to her testimony, numerous acts of sexual intercourse took place with the defendant from July until she went away to Michigan, and she testified that a child was born to her at Manistique, Mich., May 2, 1924. The defendant denied that he ever had sexual intercourse with Mrs. Rinke and, on cross-examination of the prosecutrix, defendant's counsel brought out facts which he claims discredit her statements, but it is not necessary to discuss that testimony. There was proof of the good character of the defendant.

The most important assignments of error were that there was not sufficient evidence of nonaccess of the husband and that there were errors in the charge of the court. The only proof of such nonaccess was the testimony of Mrs. Williamson, the sister of Mrs. Rinke, who was working in the Egers home, about a mile distant from the Riley house, during the summer of 1923. She testified that she and her sister visited back and forth during this time; that they visited every other day and sometimes twice a week; that she could see the Riley home from the Egers house. She was quite positive in her statement that Rinke could not have been with her sister during the summer without her knowledge, but she repeatedly said:

“He could not have been there and I not know it, because she would have told me he was.”

Again she testified:

“So far as my personal knowledge is concerned, I am ready to admit that Julius Rinke might have been there, except what she told me.”

For the defense there was evidence contradicting her statements as to the frequency of the visits and the possibility of seeing the Riley house from the Egers home.

It is an ancient and one of the strongest presumptions of the common law that a child born in lawful wedlock is legitimate. It was a presumption so favored that the testimony of the father or mother could not be received to bastardize the issue born after marriage. As early as 1777 Lord Mansfield said:

“As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and, therefore, that the offspring is spurious; more especially the mother who is the offending party.” Goodright ex dem. Stevens v. Moss et al., 2 Cowper's Reports 891.

[1] This presumption of legitimacy in such cases has ever since been generally recognized by the courts in England and America, but there has been much discussion of the manner in which it may be rebutted and of the question whether the proof should show that it is impossible or only improbable that the husband could be the father of the child. At one time it was held that, if the husband was within the four seas at anytime during the pregnancy of the wife, the presumption in favor of legitimacy was conclusive, unless the husband was impotent. But this doctrine was long ago modified and the rule which has come to prevail in this state and quite generally was thus stated in the case of Shuman v. Shuman, 83 Wis. 250, 53 N. W. 455:

“A child born of a married woman is, in the first...