State v. Crabtree

• Decision Date: 04 February 1941
• Citation: 296 N.W. 79,237 Wis. 16
• Parties: STATE v. CRABTREE.
• Court: Wisconsin Supreme Court

237 Wis. 16

296 N.W. 79

STATE

v.CRABTREE.

Supreme Court of Wisconsin.

Feb. 4, 1941.

Appeal from a judgment of the County Court of Polk County; Howard D. Blanding, Judge.

Jack Crabtree was convicted of carnal knowledge and abuse of female of the age of sixteen years, and he appeals.-[By Editorial Staff.]

Reversed.

The appellant, hereinafter referred to as the defendant, was found guilty of carnal knowledge and abuse of one Elaine Bringe, a female of the age of sixteen years, in violation of sec. 340.47, Wisconsin Statutes, and was thereupon, on July 25, 1940, sentenced to imprisonment in the State Prison at Waupun for not less than one nor more than two years.

After verdict, defense counsel moved that defendant be discharged for the following reasons: (a) because the evidence fails to prove an offense has been committed as and when charged; (b) because the testimony of the complaining witness has been impeached and is involved in so much doubt, that the verdict of the jury should be set aside; that there must be great doubt as to the credibility of said complaining witness; (c) because the verdict was influenced by passion, prejudice, and perverseness; and (d) because it is probable that justice has miscarried.

Defense counsel further moved in the alternative that in the event of the foregoing motion being denied, that a new trial be granted for the following reasons: (a) because the court erred in admitting evidence over the objection of defendant; (b) because the court erred in refusing to receive evidence offered by defendant; (c) because the court erred in instructing the jury; (d) because the court erred in refusing to instruct the jury as requested by defendant in writing; (e) because the verdict is contrary to the credible evidence; (f) because the verdict is the result of and was actuated by passion, prejudice, and perverseness; (g) because the interests of justice require a new trial; and (h) because of improper remarks made to the jury by the district attorney. All the foregoing motions were denied. Defendant appealed. The material facts are stated in the opinion.

Tom L. Yates, of Amery, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and M. J. McDonald, Dist. Atty., of Balsam Lake, for respondent.

MARTIN, Justice.

Defendant contends that the court erred (1) in denying his motion for a discharge, and (2) in refusing to grant him a new trial.

Defendant, Jack Crabtree, age 31, was employed as a barker for a carnival show, which show, in part, consisted of women “stripping” or posing in the nude. While the carnival was showing at Austin, Minnesota, where the prosecutrix, Elaine Bringe, lived, and while she was attending said carnival at Austin, defendant approached her and inquired whether she would like to work in the show. She replied that she would, but not in her home town where she was known. Later she joined the carnival while it was showing at Caledonia, Minnesota, and from there, it went to Amery, Wisconsin.

The prosecutrix testified in substance as follows: On the night of July 8, 1940, at Amery, Wisconsin, defendant accompanied her from the carnival grounds to her hotel where he left her. Soon thereafter he returned to the hotel and entered her room while she was momentarily absent. Upon returning to her room she showed defendant a costume she was making. She then dressed her hair, which took about a half an hour, and she then sat on the bed with defendant for fifteen or twenty minutes, after which they had intercourse. Defendant was in her bedroom about an hour in all.

Defendant testified in substance as follows: On the evening of July 8, 1940, the carnival closed about 11:30, and it took him twenty-five to thirty minutes to check the tickets which had been sold and to make settlement for the evening's performance. He then went to a restaurant on the show grounds, paid his bill, and there waited for one Clarence Saveland, an employee of the carnival; that Saveland and he left the carnival grounds at about 12 o'clock, went to Dehler's Cafe, located on the main street of Amery, to get cigarettes, and while at this cafe, he saw the prosecutrix sitting in a booth with one Ray Hamilton, also an employee of the carnival. From Dehler's Cafe, Saveland and he went to the all-night restaurant where they had a lunch, and from there they went to the Kelnstine home where they roomed, arriving there about 1 o'clock. Defendant denied being at the hotel, where prosecutrix stayed, at any time during the evening or night of July 8.

Clarence Saveland testified that he worked for the carnival, and that he remembered working late on the night of July 8; that he met defendant at the restaurant on the show grounds about midnight; and that they left the carnival grounds together and walked to Dehler's Cafe. While in said cafe, he saw the prosecutrix; that defendant and he left the place together and went to the all-night restaurant on the main street in Amery and there had a lunch. From there they went directly to their rooming house.

In rebuttal the State called John Helstern, Sheriff of Polk County. The only material testimony given by Mr. Helstern is to the effect that on the night of July 8, the district attorney and he were called to Amery on professional business. They got there at five minutes to twelve, stopped in front of the Amery Clinic, and there had a talk with Drs. Waterman and Campbell for three or four minutes. They then went towards the carnival grounds and found the carnival had closed. It was then midnight and the district attorney and he went back to Amery and had a lunch at the all-night restaurant. They left the restaurant at about 1 o'clock A.M. The witness was asked whether he saw the defendant and Clarence Saveland in the all-night restaurant while he was there, to which he answered: “No, I did not.” He was then asked to name those he saw in the restaurant and he gave the names of several different persons. He further testified that he saw two strange couples sitting in the booths, accompanied by a woman.

Robert Elliott, a witness for the State in rebuttal, testified that he was in the all-night restaurant while Sheriff Helstern was there. During this time he did not see the defendant or Saveland in the restaurant. The prosecutrix in rebuttal testified that she was not in the all-night restaurant on the night of July 8. Neither the sheriff nor Mr. Elliott testified to having seen Mr. Carl Burman, the chief of police of Amery, in the restaurant while they were there. Mr. Burman, in rebuttal, testified that he was in the restaurant while the sheriff and Mr. Elliott were there. He further testified that during the week of the carnival he stopped in at the all-night restaurant every night, after midnight, for a light lunch. He also testified that on several nights during the carnival he saw the defendant in the restaurant.

It appears that on July 15, 1940, the date of the preliminary examination in this case, the prosecutrix testified in preliminary examinations in two other cases, in which she claimed to have had sexual relations with two other men on separate occasions...