State ex rel. Volkman v. Waltermath
| Decision Date | 14 March 1916 |
| Citation | 162 Wis. 602,156 N.W. 946 |
| Parties | STATE EX REL. VOLKMAN v. WALTERMATH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Civil Court of Milwaukee County; Michael F. Blenski, Judge.
Bastardy proceedings by the State, on relation of Minnie Volkman, against Richard Waltermath. To a judgment dismissing the action, the plaintiff brings error. Reversed and remanded.
The facts are these: A jury in a bastardy action were instructed by the court that if they agreed they might seal their verdict and separate; they did so and came into court on the following morning and, after delivery of a sealed verdict of “not guilty” and reading thereof by the clerk, were polled on demand of the plaintiff, whereupon one of the jurors answered that it was not his verdict, and they were sent back for further deliberation. Being unable to agree they were subsequently discharged and a new trial ordered. Some weeks afterwards on defendant's motion the order granting a new trial was vacated, the action dismissed, and the defendant discharged on the ground that he had been acquitted by the sealed verdict. To reverse this judgment this writ of error is prosecuted.W. C. Owen, Atty. Gen., and Winfred C. Zabel, Dist. Atty., and Louis H. Koenig, Asst. Dist. Atty., both of Milwaukee, for plaintiff in error.
Paul O. Husting, of Mayville, for defendant in error.
WINSLOW, C. J. (after stating the facts as above).
In this case it is held:
[1] I. A bastardy action is not a criminal prosecution but a statutory proceeding to enforce a civil obligation or duty, the procedure being, however, criminal in form. Baker v. State, 65 Wis. 50, 26 N. W. 167;Barry v. Niessen, 114 Wis. 256, 90 N. W. 166;Smith v. State, 146 Wis. 111, 130 N. W. 894, 33 L. R. A. (N. S.) 463.
[2] II. While in a criminal prosecution a sealed verdict cannot be amended or changed after the jury have separated (Koch v. State, 126 Wis. 470, 106 N. W. 531, 3 L. R. A. [N. S.] 1086, 5 Ann. Cas. 389), the better rule and the weight of authority is to the effect that, in an action to enforce civil liability, if the sealed verdict is defective or if the jury on polling refuse to affirm it, they may be sent out again for further deliberation, and that a fuller or different verdict afterward returned will be good. Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220; Root v. Sherwood, 6 Johns. (N. Y.) 68, 5 Am. Dec. 191; State v. Etheridge, 15 Minn. 501 (Gil. 413); Rigg v. Bias, 44 Kan. 148, 24 Pac. 56; Proffatt on Jury Trials, § 460...
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...42 N.J.Super. 95, 126 A.2d 32, 40-41 (1956); Norburn v. Mackie, 264 N.C. 479, 141 S.E.2d 877, 880 (1965); State ex rel. Volkman v. Waltermath, 162 Wis. 602, 156 N.W. 946, 946 (1916). We find no reason to create the bright-line rule urged by Cooper, nor are we persuaded that such a rule is w......
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