State ex rel. Schlehlein v. Duris, No. 204

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBEILFUSS
Citation194 N.W.2d 613,54 Wis.2d 34
PartiesSTATE ex rel. Nancy J. SCHLEHLEIN, Respondent, v. Sherman DURIS, Appellant.
Decision Date29 February 1972
Docket NumberNo. 204

Page 613

194 N.W.2d 613
54 Wis.2d 34
STATE ex rel. Nancy J. SCHLEHLEIN, Respondent,
v.
Sherman DURIS, Appellant.
No. 204.
Supreme Court of Wisconsin.
Feb. 29, 1972.

[54 Wis.2d 35] This is a paternity proceeding wherein the trial court (without a jury) found that the defendant Sherman Duris was the father of a child born out of wedlock on

Page 614

April 7, 1969, to the complainant Nancy J. Schlehlein. The court ordered the defendant to pay the lying-in expenses and monthly support money.

Judgment was entered accordingly and the defendant Duris appeals.

The facts will be set forth in the opinion.

Charlton, Yanisch, Greco & Roffa, Earl A. Charlton and Carlton Roffa, Milwaukee, of counsel, for appellant.

Robert W. Warren, Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, James W. Conway, Asst. Corp. Counsel, Milwaukee, for respondent.

BEILFUSS, Justice.

The defendant-appellant, Duris, has raised three questions on this appeal:

(1) Was it error to refuse to admit testimony as to the resemblance between the child and a man not a party to the action?

(2) Was it error to refuse to hear an offer of proof on the resemblance issue?

[54 Wis.2d 36] (3) Was the evidence sufficient to sustain a finding that defendant was the father of the child?

The complainant, Nancy J. Schlehlein, gave birth to a baby girl on April 7, 1969. She was unmarried at all times during the relevant course of events in this case. The complaint charged that the father of the child was Sherman Duris, who has been married to another woman during all of the relevant events in this case. He has three children by his wife. He resides in the lower of two flats at 302 East Clarence street, Milwaukee, Wisconsin.

Nancy Schlehlein testified that in April, 1968, she moved into the upstairs flat at 302 East Clarence street at the suggestion of the defendant, and lived there between June 10, 1968, and August 9, 1968. The latter two dates are the outer limits of the possible conceptive period.

Nancy Schlehlein testified that she had sexual intercourse with Duris some thirty times during the conceptive period. The acts of intercourse took place in her flat, the basement, the attic, in his car, and once in a tent. She further testified that she had not gone out with any other man during the conceptive period, nor did she have sexual relations with any other man than Duris during that time.

Nancy Schlehlein also stated that she called Duris twelve hours after the baby was born and that he said he 'was sorry that he disappointed me because I wanted a boy.'

In May, 1969, Duris came to Mrs. Ruth Koprek's house where Nancy Schlehlein and her baby were visiting Mrs. Koprek and her family. Mrs. Koprek testified that Duris stated at some point while he was there, 'now, we don't want to have a baby this way again.' Duris made this statement to Nancy Schlehlein in front of the Koprek family.

[54 Wis.2d 37] Duris testified that he never had sexual relations with Nancy Schlehlein. He also testified that he never went out alone with her socially during the conceptive period. He also denied knowing Ruth Koprek.

Marilyn Tal, the defendant's sister, testified that in August, 1969, Nancy Schlehlein told her and the defendant that they would have to prove that Duris was not the father even though Nancy Schlehlein knew it was not the truth.

Elizabeth Olk, a waitress at Melba's Truck Stop, testified that on February 15, 1970, one Nilo Torres said to the baby, 'Come to Daddy.' This alleged incident took place at Melba's. Nancy Schlehlein did not make any response to Torres' comment.

Mrs. Olk then testified that on the occasion in February of 1970 she did observe the baby and Torres. The court then sustained an objection to any further testimony by Mrs. Olk on the question of resemblance

Page 615

upon the ground that it was immaterial.

In an early case, Hanawalt v. State (1885), 64 Wis. 84, 24 N.W. 489, this court considered the question of resemblance in a paternity proceeding. The issue presented itself in a somewhat different manner. There the trial court erroneously permitted the state to exhibit the child to the jury in an attempt to show a resemblance between the child and the defendant. Here it was only an attempt to offer the opinion of Mrs. Olk from her February observation of the child and Torres. The child was not exhibited nor was Torres present, nor was he a party to the action.

In Hanawalt,...

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21 practice notes
  • Burrus v. Young, No. 85-1768
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 10, 1987
    ...693 F.2d 642, 647 (7th Cir.1982) (quoting Weinstein's Evidence p 103 at 103-27 (1977)). See also State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 194 N.W.2d 613 (1972). "[T]he offer will be used, not only to determine if the error was harmless, but if there was any error at all." Wright & G......
  • Connolly's Estate, In re, No. 248
    • United States
    • United States State Supreme Court of Wisconsin
    • October 31, 1974
    ...appellant also assigns as error the refusal of his offer to show the intent of the testatrix. In State ex rel. Schlehlein v. Duris (1972), 54 Wis.2d 34, 39, 194 N.W.2d 613, 616, the court 'In most instances the trial court should permit an offer of proof either in question and answer form o......
  • MacCormick v. MacCormick
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 6, 1984
    ...of proof harmless since offer went to results of polygraph test, inadmissible as a matter of law); State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, 194 N.W.2d 613, 616 (1972) ("A trial judge need not, in fact should not, permit offers of proof as to matters that are clearly immaterial, ......
  • State v. Dodson, No. 96-1306-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 1998
    ...basis for an evidentiary ruling and second, establish a meaningful record for appellate review. See State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, 194 N.W.2d 613 (1972). An offer of proof may be made in question and answer form or by statement of counsel, but out of the presence of th......
  • Request a trial to view additional results
21 cases
  • Burrus v. Young, No. 85-1768
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 10, 1987
    ...693 F.2d 642, 647 (7th Cir.1982) (quoting Weinstein's Evidence p 103 at 103-27 (1977)). See also State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 194 N.W.2d 613 (1972). "[T]he offer will be used, not only to determine if the error was harmless, but if there was any error at all." Wright & G......
  • Connolly's Estate, In re, No. 248
    • United States
    • United States State Supreme Court of Wisconsin
    • October 31, 1974
    ...appellant also assigns as error the refusal of his offer to show the intent of the testatrix. In State ex rel. Schlehlein v. Duris (1972), 54 Wis.2d 34, 39, 194 N.W.2d 613, 616, the court 'In most instances the trial court should permit an offer of proof either in question and answer form o......
  • MacCormick v. MacCormick
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 6, 1984
    ...of proof harmless since offer went to results of polygraph test, inadmissible as a matter of law); State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, 194 N.W.2d 613, 616 (1972) ("A trial judge need not, in fact should not, permit offers of proof as to matters that are clearly immaterial, ......
  • State v. Dodson, No. 96-1306-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 1998
    ...basis for an evidentiary ruling and second, establish a meaningful record for appellate review. See State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, 194 N.W.2d 613 (1972). An offer of proof may be made in question and answer form or by statement of counsel, but out of the presence of th......
  • Request a trial to view additional results

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