Timm v. State

• Decision Date: 20 June 1952
• Citation: 54 N.W.2d 46,262 Wis. 162
• Parties: TIMM, v. STATE.
• Court: Wisconsin Supreme Court

Page 46

54 N.W.2d 46

262 Wis. 162

TIMM, v. STATE.

Supreme Court of Wisconsin.

June 20, 1952.

By a judgment dated May 17, 1951, the county court adjudged Harold Timm, age twenty-five, to be the father of the illegitimate child of the unmarried complaining witness, Leone Meverden, age twenty-one. Trial was to the court. The material facts are stated in the opinion.

Orville S. Luckenbach, Shawano, for plaintiff in error.

Vernon W. Thomson, Atty. Gen. William A. Platz, Asst. Atty. Gen., O. B. Strossenreuther, Dist. Atty., Shawano, for defendant in error.

BROWN, Justice.

There was no love between this man and woman; only lust. Their testimony makes it clear that they had no wish or intent to marry. Their fornication was casual, for their mutual gratification, without sentiment or pretense of fidelity to each other. Now the woman has an illegitimate child which she attributes to the plaintiff in error, hereinafter called the defendant. The question before the trial court was whether the evidence established him to be the father beyond a reasonable doubt. The question before us, upon a review of the record, is whether reasonable doubt of such fatherhood exists as a matter of law. If it does not, the judgment must be affirmed.

The state's one witness was Miss Meverden. She testified that she did not know when she began having occasional sexual intercourse with Timm except that it was when she was a junior in high school, in 1945 or 1946. As time went on the misconduct occurred more frequently and from January, 1949 until December, 1949 intercourse took place on an average of twice a week. No contraceptives were used. To the best of her knowledge, she became pregnant between the dates of September 1st and September 5, 1949, so concluding because her last menstrual period began about August 22nd. A full term child was born June 2, 1950. Miss Meverden testified that she did not have intercourse with any other person in 1949 and specifically denied intercourse with one Behn. With her testimony the state rested its case.

The defendant testified that the parties' sexual intercourse did not begin until April, 1948, but after that date it was a frequent practice until August 7, 1949. It was then discontinued and not resumed until the middle of October, 1949. Defendant was married to another woman in 1946 and had a child by her before 1948. He was divorced January 13, 1949. In December, 1948 he had mumps which went down to his testicles requiring ice packs on them, and which confined him until January. His testimony concerning this illness was corroborated.

A friend of defendant's, Alvin Behn, twenty-one years old, testified that he had sexual intercourse with Miss Meverden several times between August 29th and September 24, 1949.

A Dr. McCandless, called as a witness for the defendant, testified that on March 21, 1951, which was the day before the trial, he had taken a semen specimen from the defendant and had found it to be sterile. Dr. McCandless was given hypothetical facts which described a man, such as the defendant, who was twenty-five years old; who had fathered a child before 1948; who in December, 1948 was ill with mumps which went down to his testicles; who had no other history of infection, and who in March, 1951 was found to be sterile. Assuming such facts, the doctor testified that in his opinion the sterility was caused by the mumps and existed in July, August and September, 1949, at which times the man was incapable of parenthood.

The veracity of witnesses is a question to be determined by the trier of the facts. The trial court filed a written decision in which he stated that he did not believe Behn's testimony. The learned trial court's opportunity to evaluate Behn's truthfulness correctly is so far superior to that of an appellate court, which only sees the record, that we must accede to its conclusion in this respect, in spite of some circumstantial corroboration. The veracity of Dr. McCandless, however, is not attacked. The state put in no evidence disputing his testimony that a man with Timm's medical history would have been unable to beget a child in July, August and September, 1949. The doctor testified that the period of gestation is two hundred sixty-six days and therefore the conception of a full term baby born June 2, 1950 occurred September 9, 1949. He testified that to compute the date of conception, in order to foretell the probable date of birth, it is usual to count two hundred eighty days forward from the first day of the last menstruation but the two hundred eighty days is not the measure of the actual period of pregnancy; that remains two hundred sixty-six days, modified only by the duration of labor. There was no other testimony, medical or otherwise, on this subject.

The trial court's decision states:

'* * * Harold Timm admits that he had intercourse with Leone Meverden on August 7, 1949, and again, but not until October 14th or 15th of the same year.

'In State v. [Van] Patten, 236 Wis. 186 , the Supreme Court held that 'the period of gestation may vary from two hundred thirty days to three hundred twenty days.'

'Simple arithmetic shows that August 7, 1949, is two hundred and ninety-nine days from June 2, 1950, and October 14, 1949, is two hundred thirty-one days from June 2, 1950.'

and continues:

'* * * The defendant has clearly brought his acts of intercourse with Leone Meverden within the period of gestation. I must therefore find that Harold Timm is guilty and adjudge him to be the father of the child born to Leone Meverden, an unwed female, on June 2, 1950 * * *.'

The only testimony in this case concerning the period of gestation is that such period...