State ex rel. Sarnowski v. Fox

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDIETERICH
PartiesSTATE ex rel. Frances Ann SARNOWSKI, Respondent, v. Jerome N. FOX, Appellant.
Decision Date05 February 1963

Page 451

119 N.W.2d 451
19 Wis.2d 68
STATE ex rel. Frances Ann SARNOWSKI, Respondent,
v.
Jerome N. FOX, Appellant.
Supreme Court of Wisconsin.
Feb. 5, 1963.

John E. Esler, Kaukauna, for appellant.

George W. Radtke, Asst. Dist. Atty., Winnebago County, Oshkosh, for respondent.

DIETERICH, Justice.

Complainant and defendant met sometime in October of 1959, at a teen-age tavern near the village of [19 Wis.2d 70] Combined Locks, Wisconsin. At that time complainant was living in or near Sherwood, Wisconsin on a farm. In June of 1960, complainant moved to a home in Neenah and in July to a second home in the same city.

The testimony of the complainant and defendant is that they saw each other from time to time and that on many of these occasions they had intimate relations. Their testimony, however, differs as to the last time they were together. The complainant testified that the last time they had any relations was August 2d or 3d, 1960, while the defendant testified that the last time they had intimate relations was sometime in the middle of June, 1960.

The rule in paternity proceedings is well defined in State ex rel. Kapusta v. Weir (1960), 12 Wis.2d 96, 99, 106 N.W.2d 292, 294, in which this court stated:

'In State ex rel. Kurtz v. Knutson, 1958, 5 Wis.2d 609, 611, 93 N.W.2d 348, 349, this court stated:

'In illegitimacy proceedings the testimony of the complaining witness that she had timely intercourse with the defendant and that she had none with anyone else is sufficient to support a verdict that the defendant is the father of her child, if the jury believed it. Willie v. State ex rel. Kessler, 192 Wis. 224, 212 N.W. 260; State v. Willing, 259 Wis. 395, 48 N.W.2d 236."

Defendant-appellant raises these issues on this appeal:

1. Whether certain incidents which occurred during the trial constituted prejudicial error:

(a) Presence of baby in courtroom before trial;

Page 453

(b) Complainant's co-mingling with jurors;

(c) Cross-examination of defendant as to earnings and assets;

(d) Two mis-statements of law made to jury by prosecution in final argument.

2. Whether a new trial should be granted on the basis of newly discovered evidence and in the interest of justice.

[19 Wis.2d 71] 1(a) Presence of Baby in Courtroom.

The affidavit by counsel for defendant in support of a motion for a new trial recites the following:

'The complaining witness was allowed to sit across the aisle from a panel of jurors prior to the impaneling of the jury; and that for a period of more than ten minutes, the complaining witness held the child in her arms and during a good share of the time, actually held the child in the air facing the jury panel, during which time the child was fussing and crying so that it attracted the attention of every juror present; that on the basis of a conversation that this affiant had with one of the jurors, who served on the jury, the appearance of the child was discussed with the jurors in their deliberation of this matter.'

The record is barren of any of the facts related in the affidavit of defendant's counsel prior to the case having been submitted to the jury. However, discussion based upon the contents of the affidavit was had between counsel in the court at the hearing on the motion for a new trial.

A statement of the Wisconsin law on this subject is made in 40 A.L.R. 97 Anno. 145, to wit:

'Thus, while it is held in Wisconsin that it is highly improper to exhibit a child to prove its paternity by resemblance (Hanawalt v. State (1885), 64 Wis. 84 [24 N.W. 489]), it was held in Johnson v. State [(1907), 133 Wis. 453, 113 N.W. 674] a bastardy case in which the prosecutrix held her child while testifying, that, since there was no attempt to offer the baby in evidence or to exhibit it to the jury, there was no error.'

In 7 Am.Jur., Bastards, p. 706, sec. 126, it is stated:

'Presence of child in Court. Irrespective of whether profert may be made of the bastard child to the jury or whether testimony of witnesses may be received as to its resemblance or nonresemblance to the defendant, the mere presence of the child in court is not prejudicial error to the defendant, when no profert of such child is made, or offered [19 Wis.2d 72] to be made to the jury, and no reference to it, or its presence, is made by counsel to the jury. * * *' 1

The facts as related in this case are that the child was removed from the courtroom before the jury was made aware of the nature of the case and never returned to the courtroom during the trial. Under these circumstances the child's presence in the courtroom before trial commenced does not constitute reversible error.

1(b) Co-mingling with the jurors.

The affidavit by counsel for defendant in support of a motion for a new trial also states:

'That following a recessing of the trial at noon on the day of trial, the complaining witness left the courtroom in a fashion so as to co-mingle with the jurors leaving the jury box, during which time she smiled and nodded to members of the jury.'

Counsel for defendant does not contend, nor does the record reveal, that any objection

Page 454

was made to the conduct of the complainant.

This court stated in Wetzler v. Glassner (1925), 185 Wis. 593, 598, 201 N.W. 740, 742:

'If the defendant felt that the occurrence complained of was prejudicial to his rights, it was his duty to have the same brought immediately to the attention of the court. To take advantage of the verdict if it is in his favor and to attack its efficacy if it is against him is to attempt to speculate for his own benefit upon the outcome of the proceedings. Where misconduct or improprieties are brought to the attention of counsel during the course of the trial, it is the duty of counsel to immediately present the matter to the court if it is deemed to be in any way prejudicial. * * *'

[19 Wis.2d 73] If defendant had made timely objections to the co-mingling with the jury by complainant, the trial court would have had the opportunity to exercise its discretionary power to order a mistrial. On oral argument before this court the incident complained of was discussed by counsel. It is apparent from the statements made during the argument that the complainant left the courtroom through a side entrance with her counsel at the noon recess and proceeded to an adjacent room where complainant's father was caring for her...

To continue reading

Request your trial
3 practice notes
  • Kink v. Combs
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1965
    ...objections to the court. See Basile v. Fath (1925), 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 119 N.W.2d 451. In the Basile Case it was alleged that during the argument to the jury, matters not before the jury were referred to. We said in......
  • State ex rel. Schlehlein v. Duris, No. 204
    • United States
    • United States State Supreme Court of Wisconsin
    • February 29, 1972
    ...ex rel. Kessler, 192 Wis. 224, 212 N.W. 260; State v. Willing, 259 Wis. 395, 48 N.W.2d 236.'' ' State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 70, 119 N.W.2d We believe this rule should likewise apply to a review of a trial by the court without a jury. In a trial to the court, the fin......
  • State ex rel. Stollberg v. Crittenden
    • United States
    • United States State Supreme Court of Wisconsin
    • January 4, 1966
    ...quoted with approval in State ex rel. Kapusta v. Weir (1960), 12 Wis.2d 96, 99, 106 N.W.2d 292; and State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 70, 119 N.W.2d 451. 3 Kink v. Combs (1965), 28 Wis.2d 65, 72, 135 N.W.2d 789, and cases cited. 4 Withers v. Tucker (1965), 28 Wis.2d 82, 8......
3 cases
  • Kink v. Combs
    • United States
    • United States State Supreme Court of Wisconsin
    • June 25, 1965
    ...objections to the court. See Basile v. Fath (1925), 185 Wis. 646, 201 N.W. 247, 202 N.W. 367; State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 119 N.W.2d 451. In the Basile Case it was alleged that during the argument to the jury, matters not before the jury were referred to. We said in......
  • State ex rel. Schlehlein v. Duris, No. 204
    • United States
    • United States State Supreme Court of Wisconsin
    • February 29, 1972
    ...ex rel. Kessler, 192 Wis. 224, 212 N.W. 260; State v. Willing, 259 Wis. 395, 48 N.W.2d 236.'' ' State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 70, 119 N.W.2d We believe this rule should likewise apply to a review of a trial by the court without a jury. In a trial to the court, the fin......
  • State ex rel. Stollberg v. Crittenden
    • United States
    • United States State Supreme Court of Wisconsin
    • January 4, 1966
    ...quoted with approval in State ex rel. Kapusta v. Weir (1960), 12 Wis.2d 96, 99, 106 N.W.2d 292; and State ex rel. Sarnowski v. Fox (1963), 19 Wis.2d 68, 70, 119 N.W.2d 451. 3 Kink v. Combs (1965), 28 Wis.2d 65, 72, 135 N.W.2d 789, and cases cited. 4 Withers v. Tucker (1965), 28 Wis.2d 82, 8......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT