State ex rel. Mahnke v. Kablitz

• Decision Date: 05 February 1935
• Parties: STATE EX REL. MAHNKE v. KABLITZ.
• Court: Wisconsin Supreme Court

217 Wis. 231

258 N.W. 840

STATE EX REL. MAHNKE

v.KABLITZ.

Supreme Court of Wisconsin.

Feb. 5, 1935.

Appeal from an order of the Circuit Court for Sheboygan County; Edward Voigt, Circuit Judge.

Affirmed.

WICKHEM, J., ROSENBERRY, C. J., and NELSON, J., dissenting in part.

This was a bastardy action, commenced on May 24, 1933, by the State of Wisconsin ex rel. Arlisle Mahnke against Monroy Kablitz. The action was tried to the court and a jury. The jury found the defendant not guilty, and the court, on May 25, 1933, entered an order discharging defendant. Thereafter, on the 2d day of June, 1933, the state moved to set aside the verdict and for a new trial, and the order appealed from granting a new trial was made and entered on July 22, 1933. The grounds upon which the new trial was granted were that the evidence did not sustain the verdict, and that the interests of justice require a new trial. Defendant appeals.Bassuener & Humke, of Sheboygan (John M. Poole, of Sheboygan, of counsel), for appellant.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Charles A. Copp, Dist. Atty., of Sheboygan, for respondent.

FAIRCHILD, Justice.

[1] The first question involved is whether under any circumstances the state is entitled to a new trial in a bastardy action. At the outset it should be said that the answer to this question depends, not upon what name be given to the action, but whether the defendant in bastardy proceedings is charged with or prosecuted for a crime. Both the Federal and State Constitutions provide that no person for the same offense shall be put twice in jeopardy of punishment. Selections at random from the State and Federal Constitutions, dealing with the rights of those accused of crime, are as follows: “No person shall be held to answer for a capital, or otherwise infamous crime; * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Article 5, Amend. U. S. Const. “No person shall be held to answer for a criminal offense without due process of law, and no person for the same offense shall be put twice in jeopardy of punishment.” Article 1, § 8, Wis. Const. These constitutional provisions are concerned solely with the rights and immunities of persons accused of crime. It is this fact that arouses the operation of the protective features of the constitution, and not the form of the action to which defendant is subjected. Certainly a defendant in bastardy proceedings is not being prosecuted for a crime. True, the action is criminal in form, and the procedure in many respects follows that enforced in prosecutions for crime. Thus it has been held that bastardy proceedings can be brought to the Supreme Court for review by writ of error only, and that the accused must be proved guilty beyond a reasonable doubt. Windahl v. State, 189 Wis. 424, 207 N. W. 694. The rules of taxation and costs in such actions are the same as in criminal proceedings, so likewise are the rules of evidence. Windahl v. State, supra. In the latter case, where defendant offered to prove his reputation, and the trial court declined until such time as his character was first impeached as a witness, it was held that since the proceedings were criminal in form, defendant might introduce evidence of good character without having first been impeached as a witness. On the other hand, this court has taken the position that the proceedings, being purely statutory, are sui generis. State v. Jager, 19 Wis. 235;Smith v. State, 146 Wis. 111, 130 N. W. 894, 33 L. R. A. (N. S.) 463. The proceeding has been called a mere quasi criminal proceeding. Jerdee v. State, 36 Wis. 170;State v. Mushied, 12 Wis. 561; State v. Jager, supra. And it has been said that it cannot be classed either with criminal or civil cases. Goyke v. State, 136 Wis. 557, 117 N. W. 1027, 1028, 1126;Meyer v. Meyer, 123 Wis. 538, 102 N. W. 52. It has been squarely held in Baker v. State, 65 Wis. 50, 26 N. W. 167, that a bastardy proceeding is neither a criminal prosecution, an indictment, nor information within the meaning of sections 7 and 8, art. 1, Const. In Goyke v. State, supra, it was said: “It has characteristics of both and as to such as are similar to those of criminal actions the rules and practice therein are applicable and as to such as are the same or similar to those of civil actions the rules and practice therein are applicable.”

It has been held that while in a criminal prosecution a sealed verdict cannot be amended or changed after the jury has separated, the rule in bastardy proceedings is the same as that in civil actions. Goyke v. State, supra; State ex rel. Volkman v. Waltermath, 162 Wis. 602, 156 N. W. 946. In Baker v. State, supra, where defendant failed and refused to appear and defend, it was held proper to try the action and to submit the cause to the jury, in his absence. It was held in State v. Jager, supra, where there was certified an illegitimacy proceeding to this court under statutory provisions for the certification to this court of exceptions taken by any person convicted of an offense before the circuitcourt, that the statute would not apply to an illegitimacy proceeding but only to purely criminal causes. In Smith v. State, supra, where private counsel had prosecuted a bastardy proceeding after the enactment of section 166.08, Stats., making it the duty of the district attorney to appear and prosecute illegitimacy proceedings, it was held that the practice was proper.

It is not to be denied that the hybrid character of the proceedings has created confusion and difficulty. The trial of a bastardy action in many important respects is governed by procedural rules more favorable to the defendant than those applicable to civil actions. This is doubtless because, while not a criminal prosecution, the action is based upon a criminal act and one involving sufficient moral turpitude to subject ...