Smith v. State
| Decision Date | 05 April 1911 |
| Citation | 146 Wis. 111,130 N.W. 894 |
| Parties | SMITH v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Brown County; Samuel D. Hastings, Judge.
In a bastardy proceeding by the State against Dempster Smith, there was judgment against him, and he brings error. Affirmed.M. E. Davis, for plaintiff in error.
Levi H. Bancroft, Atty. Gen., and Sheridan, Evans & Merrill, for the State.
The sole question presented by this appeal is: Can private counsel lawfully prosecute in a bastardy proceeding? It is conceded by counsel for plaintiff in error that, previous to the enactment of section 1533m (chapter 648, Laws 1907), they could do so, but it is claimed that since its enactment only the district attorney has such right. The section reads: “It shall be the duty of the district attorney to appear and prosecute in all bastardy proceedings in the trial court. * * *” And it is argued that this law placing the duty upon the district attorney to prosecute by implication excludes the right of a private attorney from performing the duty, and that either the complaining witness or the defendant may insist upon the statute being complied with. It is further urged that, while a bastardy proceeding is not a criminal action, yet it subjects the defendant to great humiliation and disgrace, and sound public policy dictates that the prosecution should be placed in the hands of a disinterested prosecutor, and not in the hands of private counsel who may be indirectly pecuniarily interested in the result, and that the statute was passed to accomplish such a purpose.
The answer to the question presented for determination will depend upon the nature and object of a bastardy proceeding, and who is primarily interested in the result of the action. If the proceeding be one in which the defendant is sought to be punished for a wrong done to society or the state, then there is great force in the argument that the state alone should prosecute. Biemel v. State, 71 Wis. 444, 37 N. W. 244;State ex rel. Durner v. Huegen, 110 Wis. 221, 85 N. W. 1046, 62 L. R. A. 700. A bastardy proceeding has been held to be neither a civil nor a criminal action, but one depending wholly upon the terms of the statute authorizing it for the relief that may be afforded thereby. State v. Mushied, 12 Wis. 561;State v. Jager, 19 Wis. 235;Baker v. State, 56 Wis. 568, 14 N. W. 718;Meyer v. Meyer, 123 Wis. 538, 102 N. W. 52. The latter case held it was designed primarily to enable the injured female to recover compensation from the person who has in the eye of the law inflicted an injury upon her with consequent damages. It has also been held that, when instituted by the mother, it is a proceeding for her benefit and protection to enforce the father's natural obligations to support his child. Baker v. State, 56 Wis. 568, 14 N. W. 718;Barry v. Niessen, 114 Wis. 256, 90 N. W. 166. So we see that whether the defendant's liability is founded upon a tort or upon a natural obligation, irrespective of blame, it is a liability primarily to the mother, and the remedy is given for her benefit. Tru...
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