State ex rel. Stollberg v. Crittenden

• Decision Date: 04 January 1966
• Citation: 139 N.W.2d 94,29 Wis.2d 413
• Parties: STATE ex rel. Judith STOLLBERG, Appellant, v. Jack CRITTENDEN, Respondent.
• Court: Wisconsin Supreme Court

Page 94

139 N.W.2d 94

29 Wis.2d 413

STATE ex rel. Judith STOLLBERG, Appellant, v. Jack CRITTENDEN, Respondent.

Supreme Court of Wisconsin.

Jan. 4, 1966.

Bronson C. La Follette, Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, Patrick J. Foster, Asst. Corp. Counsel, Milwaukee, for appellant.

Edward R. Cameron and Alvin L. Zelonky, Milwaukee, for respondents.

CURRIE, Chief Justice.

Counsel for relator raise the following contentions on this appeal:

(1) There is no credible evidence which in any reasonable view supports the jury verdict.

(2) Defendant's counsel engaged in improper cross-examination and made improper remarks in the presence of the jury which were prejudicial and require a new trial if this court does not determine that the evidence requires a judgment that defendant is the father of the child.

(3) A new trial should be granted in the interest of justice if relator does not prevail with respect to either of the foregoing two contentions.

Credible Evidence to Sustain Verdict.

The child, a boy, was born September 16, 1964, and weighed 7 pounds 7 ounces. Relator's last menstrual period before the child's birth commenced December 14, 1963, and lasted approximately five days.

Relator and defendant became acquainted at 'Bennie's' tavern in Milwaukee where defendant was working as a bartender. Defendant had commenced work as a bartender in the month of November, 1963, and testified he noticed that relator frequented the bar three or four times a week. He testified relator always remained until closing time and then left with other men.

On the night of December 22d, after the bar closed, defendant took relator home for the first time. Both parties testified they engaged in intercourse that first night they were together. Their relationship continued through the remainder of December and the month of January and involved further engagements in intercourse.

There was no testimony that relator had intercourse with other men during the period of probable conception, but defendant testified that relator often left the bar with other men after closing time, and named three and a possible fourth. Relator admitted that during this period she had been 'taken home' by two of the men named by defendant on different occasions after the bar had closed.

Relator contends that these instances when she was taken home after the bar closed were not 'dates' with the men involved, and she did not in fact 'go out' with them. However, relator also did not consider that her first night out with defendant was a 'date,' yet they engaged in sexual intercourse on that first night.

Counsel for relator contend that there was not credible evidence to support the jury's verdict that defendant was not the father of the child. This contention is based on defendant's admission that he had intercourse with relator during the conception period and the fact that there was no direct contradiction of relator's testimony that she did not have intercourse with any other men during this period. Defendant, on the other hand, maintains that there was evidence from which the jury would draw a reasonable inference that relator had intercourse with men other than defendant during the conception period. Our review of the record satisfies us that the jury could draw such an inference from the evidence hereinbefore reviewed.

The jury probable considered highly significant the fact that relator had intercourse with defendant the very first night he took her home from the tavern. It would not be unreasonable for the jury to conclude that the same result probably occurred when other men took her home from the tavern during the conception period. The evidence does not suggest that relator and defendant were engaged in any love affair that distinguished their relationship from that which might have existed between her and the other men who took her home from the tavern.

Counsel for relator stress the fact that her testimony, that she did not have intercourse with any men other than defendant during the conception period, was not directly controverted. However, the jury were the judges of her credibility and were not required to accept her testimony as true. ¹ As was stated in State ex rel. Kurtz v. Knutson: ²

'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. Wille v. State ex rel. Kessler, 192 Wis. 224, 212 N.W. 260; State v. Willing, 259 Wis. 395, 48 N.W.2d 236.' (Emphasis supplied.)

We conclude that there was credible evidence which reasonable supports the jury's verdict.

Alleged Misconduct by Defendant's Counsel.

The trial court considered that the possible date of conception lay somewhere between November 18, 1963, and January 17, 1964, and that any act of sexual intercourse by relator prior to November 18, 1963, was immaterial. Accordingly the trial court sustained objections to...