State v. Van Patten

• Decision Date: 08 November 1940
• Citation: 294 N.W. 560,236 Wis. 186
• Parties: STATE v. VAN PATTEN.
• Court: Wisconsin Supreme Court

236 Wis. 186

294 N.W. 560

STATE

v.VAN PATTEN.

Supreme Court of Wisconsin.

Nov. 8, 1940.

Appeal from a judgment of the Circuit Court for Waupaca County; Herman J. Severson, Judge.

Delbert Van Patten was convicted of being the father of a bastard child, and he appeals.-[By Editorial Staff.]

Reversed and remanded, with directions.

Defendant appeals from a judgment of the circuit court for Waupaca County entered December 30, 1939, adjudging that he was the father of a child born to Hazel Reinert on June 4, 1939, and adjudging that he pay to the clerk of the circuit court for Waupaca County $173.40 expenses of the trial and the sum of $10 per month from date of birth of the child until said child attains the age of 16 years, and further ordering defendant to execute a bond conditioned for the performance of the judgment, and in default of giving said bond, that he be committed to the jail of Waupaca County until he comply with said judgment or be otherwise discharged according to law.

Defendant assigns as errors (1) that the testimony is insufficient to sustain a verdict of guilty; (2) that the court erred in its instructions; and (3) that defendant was denied the right of a proper blood test as provided by sec. 166.105, Stats. Material facts will be stated in the opinion.

Eberlein & Eberlein, of Shawano, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Paul E. Roman, Dist. Atty., of Manawa (Wendell McHenry, of Waupaca, of counsel), for respondent.

MARTIN, Justice.

It will serve no useful purpose, in view of the conclusion reached by the court, to more than briefly state the facts. The complaining witness Hazel Reinert was eighteen years old on June 12, 1939; she had graduated from high school the preceding June. She lived with her parents on their farm in the town of Bear Creek in Waupaca County. On Sunday evening, August 21, 1938, she accompanied her brother and some girl friends to the Rustic Resort Dance Hall which is located a short distance from the city of Clintonville and about ten miles from the farm. Here she met and danced with the defendant who had come to this dance with his brother Martin. Defendant and Martin were both single men, 26 and 27 years of age, respectively, and resided with their parents on a farm. Defendant asked to take her home from the dance and she consented. On the trip to her home, the three of them sat in the front seat of the car, Martin driving, Hazel seated in the middle between the two boys. They were engaged in a general conversation and arrived there at about 1:30 A.M. Martin drove into the farmyard, turned around so that the car faced the highway, and then stopped the car about halfway between the road and the house. He then turned out the lights and stopped the motor. The three remained in the car until about 3 A. M. Thus far there is no dispute in the evidence.

Hazel testified that as soon as Martin brought the car to a stop, he turned out the lights and then got into the back seat of the car, leaving her and defendant in the front seat; that Martin did not thereafter speak to either her or defendant; that both she and defendant thought Martin was asleep in the rear seat of the car; that defendant started making love to her and within five or ten minutes afterwards, they had their first act of intercourse; that they had a second act of intercourse before defendant left at 3 o'clock. Defendant testified that when they arrived at Hazel's home, all three engaged in a general conversation about farming, tractors, school and dances; that at about 3 o'clock he took Hazel up to the house, bade her goodnight, gave her a kiss, and went home; that that was the extent of his love-making. He denied having intercourse with Hazel. Martin's testimony corroborates defendant's testimony in all details.

Hazel testified she had her last menstrual period August 13, 1938, and did not menstruate thereafter until June, 1939. She did not inform anyone of her condition until her parents became aware of it in April, 1939. She was aware of her pregnant condition on September 13, 1938, and made no attempt to contact defendant in any way. She knew where he lived-about twenty miles from her home. She thought she saw defendant at a dance in November, 1938, at which time he was in a crowd, and she did not speak to him. Later, defendant saw her in a group at a dance but he did not speak to her. She testified she did not know why she did not tell defendant about her condition and that she was afraid to tell her parents. She admitted having intercourse with another man about one year before, but she denied having intercourse with any other man between July 21, and September 20, 1938, other than the defendant. When her parents learned of her condition, they took her to the district attorney's office to sign the complaint in this action. The case was tried to the court and jury, and the jury returned a verdict of guilty.

Defendant assigns as errors the following parts of the court's charge to the jury;

“The...