State v. Debs
| Decision Date | 08 January 1935 |
| Citation | 258 N.W. 173,217 Wis. 164 |
| Parties | STATE v. DEBS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Superior Court of Dane County; Roy H. Proctor, Judge.
Bastardy proceeding by State against Marvin Debs. From an order denying defendant's motion for a new trial, defendant appeals.--[By Editorial Staff.]
Affirmed.
This was a bastardy action begun August 9, 1932. The case was tried to the court, S. B. Schein, judge presiding, a jury trial having been waived by defendant. Defendant was adjudged the father of the child, and the usual bastardy judgment entered pursuant to chapter 166, Stats., on August 13, 1932. Thereafter a motion for a new trial on the ground of newly discovered evidence was made in the superior court before Roy H. Proctor, judge presiding. From an order entered March 17, 1933, denying the motion, defendant appeals. The material facts will be stated in the opinion.Lowry, Beggs & Dawson, of Madison, for appellant.
James E. Finnegan, Atty. Gen., and Fred Risser, Dist. Atty., and Carl Christianson, Asst. Dist. Atty., both of Madison, for the State.
The complaining witness testified that she was eighteen years of age on June 12, 1932, and had a child born to her on July 2, 1932. She claimed to have had illicit relations with defendant on October 29th and about two weeks and four weeks before that date. She also testified that she had relations with him several times before this. Her menstrual period was from September 11 to September 17, 1931. There was medical testimony to the effect that the child was normal, and that it was conceived some time between September 15 and October 2, 1931.
At the preliminary hearing complaining witness was asked about her relations with Dave Bowers, Jack Meyers, Joe Schmelzer, and Roger Brougger, and upon the trial she was asked about relations with Charles Meyers, Johnnie Schmelzer, and Otto Zelner. The defendant did not take the stand, and none of the persons mentioned above, and with respect to whom the complaining witness was questioned, were subpœnaed. The affidavits upon which a new trial is sought were those of Charles Meyers and James Anderson. Meyers' affidavit asserts that he had had sexual relations with the complaining witness many times, and that he had intercourse with her during the month of September, 1931. Anderson's affidavit asserts that he had sexual relations with her during the months of July and August, 1931. The state filed a counter affidavit by the complaining witness denying the facts set up in the affidavits.
[1][2] We are satisfied that there was no abuse of discretion in denying the motion for a new trial. So far as Meyers' affidavit is concerned, the court had good reason to conclude that such evidence as this affiant could give was not newly discovered or could, with proper diligence, have been produced upon the trial, since the complaining witness was questioned at the trial concerning her relations with him. Neither affidavit fixes the relations of affiant with the complaining witness in the period during...
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Eaton v. State
...at that time. This evidence is merely impeaching in character and is ordinarily insufficient to warrant a new trial. State v. Debs, 1935, 217 Wis. 164, 258 N.W. 173, and cases cited. Cf. State v. Garnett, 1943, 243 Wis. 615, 11 N.W.2d 166. It is considered the court did not abuse its discre......
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Wroblewski v. Exchange Insurance Ass'n of Chicago
...in nature, cannot be the basis for a new trial. 39 Am.Jur., New Trial, § 167. The rule has been stated in Wisconsin in State v. Debs, 217 Wis. 164, 166, 258 N.W. 173, 174, as follows: "Under the decisions of this court, evidence which merely tends to impeach the credibility of a witness doe......
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Kintopp v. Pieper (In re Kintopp's Will)
...tends to impeach the credibility of a witness does not warrant a new trial upon the ground of newly discovered evidence’ (State v. Debs, 217 Wis. 164, 258 N.W. 173, 174;Sweda v. State, 206 Wis. 617, 240 N.W. 369;Birdsall v. Fraenzel, 154 Wis. 48, 142 N.W. 274); and (III) that the newly disc......
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Greer v. State
...v. State (1965), 29 Wis.2d 20, 138 N.W.2d 252, and Williamson v. State (1966), 31 Wis.2d 677, 386, 143 N.W.2d 486, 489.5 State v. Debs (1935), 217 Wis. 164, 258 N.W. 173.6 See State v. Fricke (1934), 215 Wis. 661, 667, 255 N.W. ...