State ex rel. Sarnowski v. Fox

• Decision Date: 05 February 1963
• Citation: 119 N.W.2d 451,19 Wis.2d 68
• Parties: STATE ex rel. Frances Ann SARNOWSKI, Respondent, v. Jerome N. FOX, Appellant.
• Court: Wisconsin Supreme Court

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 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;

(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.

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 ), 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 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 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. * * *'

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 child. The jury also exited from the courtroom at this time and complainant, according to counsel for defendant, nodded and smiled to members of the jury. It is not contended that any conversation passed between any juror and complainant.

The evidence before this court clearly indicates that though complainant's conduct was improper it did not tend to create bias or prejudice in the minds of the jurors. It should be remembered that the jury and complainant were in fairly close proximity throughout the trial. Complainant testified and we can safely assume that a certain amount of this testimony was directed to the jury and accompanied by facial animation. Under the circumstances we do not find grounds for granting a new trial in the interests of justice for the reasons of the minor impropriety of complainant when she momentarily, while leaving the courtroom, co-mingled with and smiled and nodded at members of the jury. ²

1(c) Cross-examination.

Counsel for defendant contends that certain cross-examination which elicited testimony from defendant as to his earnings and assets was improper and prejudicial. However, timely objections to some of this testimony were not made at the trial. Defendant's financial condition was fairly well established before any objection was made to the relevancy of the questions.

(Counsel for complainant) 'Q. How much money do you make a week? A. About $80.

'Q. Do you own your own home? A. No, sir.

'Q. Do you have any other assets outside of your income, your weekly income from work? A. No, sir.

'Q. How much do you think lying-in expenses and hospital costs are for a child, normal birth? A. About $230.'

(Counsel for defendant) 'May it please the Court, I don't particularly object to this but I think we may be getting a little irrelevant and far afield.'

(The Court) 'He testified he had some idea, I suppose the district attorney can find out what that idea was. Objection overruled.'

(Counsel for defendant) 'Withdraw the objection.'

(The Court) 'Objection withdrawn. Would you read the last question and answer.'

(Counsel for complainant) 'Q. Did you have that amount of money available at the time that she had agreed to it?'

(Counsel for defendant) 'I object to that as being irrelevant. * * *'

(The Court) 'Objection overruled. You may answer the question.'

(Counsel for complainant) 'Q. Did you have the $230 or $240 to pay the hospital expenses and lying-in expenses? A. Yes, I have.

'Q. Did you have at that time? A. Yes, I did.

'Q. You testified just a few questions ago the fact the only assets you have is the amount of money you get per week from the work that you do? A. Yes, sir.

'Q. Where did this other money come from then? A. In the bank.

'Q. You had it in the bank? A. Yes.'

(Counsel for defendant) 'For the sake of the record I want to object to that last question and any further questions of a similar nature. * * *'

(The Court) 'The motion to have the last question and answer stricken is denied. It will stand.'

What the defendant earns or has in the bank, of course, is irrelevant to the issue of paternity. All testimony after defendant's counsel made his first objection should have been stricken. However, such testimony cannot be regarded as unduly prejudicial to defendant in view of the prior testimony of his financial condition to which no objections were interposed.

1(d) Mis-statement of law.

Final arguments by the respective attorneys in this action were not recorded. No transcript of their final argument is therefore available to this court on appeal. Defendant's counsel attempts by affidavit, in support of motions for a new trial after verdict, to establish what transpired on the...