Till v. State
| Decision Date | 21 May 1907 |
| Parties | TILL v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Eau Claire County; James O'Neill, Judge.
Daniel Till was convicted of adultery, and he brings error. Affirmed.
Charge of adultery, committed on December 15, 1905, by defendant upon his stepdaughter. The evidence generally consisted of testimony that on the day named defendant announced at supper that some one of the family needed to come to a neighboring barn, where he was employed, to bring the milk, as he was obliged, after doing the chores, to take his employer to drive; that after dusk the stepdaughter, Pauline, about 20 years of age, went to the barn, remained about half an hour and returned without the milk, stated that defendant had not completed milking, but would bring it himself, as he found he need not go to drive. This was supplemented by testimony of admissions made thereafter by defendant to other daughters of his wife and the husband of one of them, also to a neighbor, that he had had sexual relations with Pauline. Some time in January Pauline had been seised with a nervous or hysterical attack, not by any evidence connected with the fact charged, and had become deranged and been sent to an insane asylum, so that she did not testify. Defendant denied all improper relations with her, and denied her presence at the barn on the evening in question, and denied all the alleged admissions, and offered proof of good reputation in the community. On the trial defendant insisted, by motion for dismissal and by plea in abatement and demurrer to the information, that there had been no preliminary examination on which he had been properly held to trial, because the evidence offered on that examination was not sufficient to warrant a finding either that any crime had been committed or that there was reasonable probability that defendant committed it, upon all of which he was overruled. He also, at the close of the state's evidence, moved for discharge and acquittal, and again, at the close of all the evidence, moved for a direction to acquit, both of which were overruled and exceptions reserved, whereupon the jury returned a verdict of guilty, and the court, after overruling motions in arrest of sentence and for a new trial, sentenced the defendant, to review which he sued out writ of error from this court.W. H. Frawley, for plaintiff in error.
F. L. Gilbert, Atty. Gen., and J. E. Messerschmidt, State Law Examiner, for the State.
1. The first and second contentions of plaintiff in error, that the evidence before the magistrate was insufficient to confer jurisdiction to commit defendant for trial, and that the evidence upon the trial was not sufficient to convict, may both be considered together, for the evidence upon the two occasions did not differ materially in character, although perhaps somewhat more complete and exhaustive upon the trial. The crime of adultery, perhaps more frequently than any other, must ordinarily be proved by circumstantial evidence, and the rule is thoroughly established that proof of adulterous inclination between the parties existing prior to the alleged offense, combined with proof that the parties have been together “in equivocal circumstances, such as would lead the guarded discretion of a reasonable and just man under the circumstances to the conclusion of guilt beyond a reasonable doubt,” are sufficient to justify an inference that adultery did take place between them at the time of such opportunity. Monteith v. State, 114 Wis. 165, 168, 89 N. W. 828. This rule is commonly abbreviated into the statement that proof of inclination and opportunity suffice; but that rule is correct only when it is understood that inclination means more than ordinary human tendencies, and must extend to proof of conduct reasonably suggesting specific libidinous tendency of each of the parties toward the other, and opportunity must be understood as meaning more than mere chance, and must include the elements involved in the description above quoted. Baker v. United States, 1 Pin. 641;Hofer v. State (Wis.) 110 N. W. 395;Thompson v. State (Iowa) 111 N. W. 319. It cannot well be doubted that if the jury believed the testimony of the numerous witnesses to admissions by defendant that, for a long time, illicit sexual relations had existed between him and this stepdaughter, and the expert medical testimony to the effect that she showed full physical marks of unchastity, there was sufficient evidence to believe in an adulterous inclination within the meaning of the rule above stated. It is more doubtful, perhaps, whether the circumstances of the alleged opportunity are such as to satisfy that rule. Of course, the mere presence of a member of the family at the place of defendant's work for so natural a purpose as to bring back the usual supply of milk carries no necessary inference of an immoral purpose; yet it did furnish full and adequate opportunity, and there is some evidence of difficulty of mutual access within the residence, and there is the inferable circumstance that there was, in fact, no real occasion for her to go for milk, since defendant was able...
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State v. Richardson
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