State ex rel. Isham v. Mullally

Decision Date29 December 1961
Citation15 Wis.2d 249,112 N.W.2d 701
PartiesSTATE ex rel. Geneva ISHAM, Respondent, v. Larry MULLALLY, Appellant.
CourtWisconsin Supreme Court

Paternity action by Geneva Isham alleging the defendant Larry Mullally is the father of her male child born out of wedlock on June 4th, 1960. The trial was to the court, which found the defendant was the father of the child. From the judgment so decreeing, the defendant appeals.

Douglas, Omernik & Bitney, Spooner, for appellant.

John W. Reynolds, Atty. Gen., William A. Platz and John H. Bowers, Atts. Attys. Gen., Terence N. Hickey, Dist. Atty., Hayward, for respondent.

HALLOWS, Justice.

Geneva Isham, the complainant who was twenty-five years of age at the time of the trial, lived with her parents on an Indian reservation in Sawyer county. She was hard of hearing, had completed one year of high school and had never married. She testified she went with the defendant in the summer of 1959 during the months of June, July, August, September and the first part of October. Most of her association with the defendant consisted in seeing him at dances at the Chicago Inn tavern. On two occasions the defendant took her home in his car and had sexual relations with her. She was quite definite that these two occasions took place a few weeks apart in July, 1959. In November she realized she was pregnant and shortly thereafter went to Chicago where she stayed until she returned to Hayward in April. Upon entering the hospital at Hayward to give birth to the child, she stated to the receptionist the defendant was its father. The birth record of the child indicates the father as 'undertermined.' Shortly after the birth, she swore out the complaint against the defendant.

The defendant's version is he had seen the plaintiff around the Chicago Inn during the months of July, August and September, had driven her home on two occasions but was accompanied by Glen Ramsdell and had no sexual relations with the complainant. Ramsdell was unavailable as a witness at the trial but it was agreed his testimony would support the defendant's version. According to the defendant, the complainant asked him for a ride home on these occasions because the man who brought her to the tavern stood her up on one occasion as did her parents on the other. This was denied by the complainant.

There are other conflicts in the testimony. Complainant testified she did not go out with anyone else that summer, had never been engaged and had no other boy friend. Later in her testimony, she stated tht while she was not engaged she did expect to marry, in April of 1959, a man who lived on the Indian reservation and they went to Pine City to be married just before he entered military service; that the marriage did not take place because he lacked finances. There is some conflicting testimony as to whether this man visited her for a few hours during the summer of 1959. There is other testimony which tended to impeach her credibility. The complainant's testimony in some respects was contradictory and inconsistent.

Part of the confusion in the complainant's testimony must be attributable to her defective hearing as obviously some of her answers were not responsive to the questions she did not correctly hear. While her memory was not of the best on details, she was sure she had intercourse with the defendant twice, the first time being sometime in July and the second time a few weeks later, which she also thought was in July. She stated she did not have intercourse in August or September. The complainant was positive she did not have intercourse at any other time with the defendant or with any other man from July to October, 1959, or during the period she went with the defendant.

The doctor who attended the birth certified that the baby, upon delivery, weighed seven pounds six ounces and represented a full term pregnancy. The presumptive period of conception was, therefore, between August 9th and October 7th, 1959, unless there was competent evidence to the contrary. 1

Upon the testimony of the complainant that she had started to associate with the defendant in June and had intercourse in July, the court reasoned those acts occurred a month to a month and a half after she started to go with the defendant. Since the defendant testified he first met the complainant the latter part of July and the court throught the complainant was not too sure of the time of the intercourse in the summer of 1959, those acts could have taken place in late August, if not the first part of September, within the presumptive period of the statute. The court concluded from this and her testimony that she did not have intercourse with anyone else and the defendant was the father of the child. This reasoning was preceded by the following statement of the court referring to blood tests taken of the complainant, the child, and the defendant, which were properly not in evidence:

'The defendant has had the benefit of what assistance science can give him, and he was not excluded. Now, that does not mean by that test that he is the father of the child but that he is in the group of persons who could be the father of the child.'

Consideration of the blood tests, which did not exclude the defendant, by the trial court was prejudicial error and the defendant would be entitled to a new trial on that ground. Sec. 52.36, Stats., provides that blood tests shall be received in evidence only in cases where definite exclusion of any person is established. The defendant, not being excluded by the blood tests, stood in the same position as if no such tests had been taken and the court should not have considered them. However, we prefer to rest our decision on the sufficiency of the evidence to sustain the finding of the trial court.

The complainant contends the findings of the trial court, as the trier of the facts, will be sustained unless they are contrary to the great weight and clear preponderance of the evidence and necessarily that means if there is any credible evidence which in any reasonable view supports the finding, it, like a jury verdict, will not be disturbed, citing State v. Evjue (1949), 254 Wis. 581, 37 N.W.2d 50; State v. Johnson (1960), 11 Wis.2d 130, 104 N.W.2d 379. Those cases do not so hold. In Evjue, the defendant was acquitted by the court without a jury and the state appealed. In discussing double jeopardy, we stated it made no difference that the acquittal was by a court and not by a jury. When the state appeals from an acquittal, the sufficiency of the evidence is not open for review as it is when the accused appeals from a finding of guilty by the court or by the jury. Evjue was cited in Johnson, perhaps incorrectly, and may have misled the respondent. In Johnson, we were discussing the nature of the duty of this court to review evidence on appeal and we said the duty was the same in criminal and in civil cases, whether the finding was by the court or by the jury. Such duty was not to determine the issue anew but to examine the evidence for its legal sufficiency to support the determination made.

However, different tests of legal sufficiency of the evidence are used in reviewing a finding by the court and a verdict by a jury. A verdict of a jury in a criminal or civil case will be sustained if there is any credible evidence which, in any reasonable view, supports it. However, when a criminal or a civil case is tried to the court, the findings of the trial court will be sustained unless contrary to the great weight and the clear preponderance of the evidence. Under both rules, the sufficiency of the evidence must be considered in its relation to the particular burden of proof which the complainant had. In paternity cases, since 1959, the complainant has the burden of proving the issues by clear and satisfactory preponderance of the evidence. Sec. 52.355, Stats. State ex rel. Sowle v. Brittich (1959), 7 Wis.2d 353, 362, 96 N.W.2d 337; State ex rel. Kapusta v. Weir (1960), 12 Wis.2d 96, 106 N.W.2d 292.

The great weight and clear preponderance test means in substance as stated in Estate of Larsen (1959), 7 Wis.2d 263, 96 N.W.2d 489, that is, the finding of the trial court will not...

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31 cases
  • State v. Clarke
    • United States
    • Wisconsin Supreme Court
    • October 3, 1967
    ...terms of burden of proof, but it is not unusual to state the test in terms of quantity of the evidence. See State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701. Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state an......
  • Crown Zellerbach Corp. v. Department of City Development of City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • June 2, 1970
    ...28 Wis.2d 297, 137 N.W.2d 45; Estate of Perssion (1963) 20 Wis.2d 537, 123 N.W.2d 465, 13 A.L.R.3d 373; State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701." Estfred Corp. v. Freeman (1967), 36 Wis.2d 19, 25, 26, 153 N.W.2d 13, The trial court was correct in its determinat......
  • Massen v. State
    • United States
    • Wisconsin Supreme Court
    • January 7, 1969
    ...terms of burden of proof, but it is not unusual to state the test in terms of quantity of the evidence. See State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701. Stating the rule conversely for the sake of clarity, the evidence when considered most favorably to the state an......
  • State v. Schmear
    • United States
    • Wisconsin Supreme Court
    • June 25, 1965
    ...affirmed. 1 This rule is sometimes stated in terms of 'any credible evidence to sustain the verdict.' See State ex rel. Isham v. Mullaly (1961), 15 Wis.2d 249, 112 N.W.2d 701, and State v. Morrissy (1964), 25 Wis.2d 638, 131 N.W.2d 366. But as pointed out in Stevens, such statement of the r......
  • Request a trial to view additional results

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