Vogel v. State

• Decision Date: 03 March 1936
• Citation: 265 N.W. 567,220 Wis. 677
• Parties: VOGEL v. STATE.
• Court: Wisconsin Supreme Court

220 Wis. 677

265 N.W. 567

VOGEL

v.STATE.

Supreme Court of Wisconsin.

March 3, 1936.

Error to review a judgment of the Civil Court of Milwaukee County; Carl Runge, Judge.

Russell Vogel was adjudged to be the father of an illegitimate child, and he brings error.--[By Editorial Staff.]

Judgment reversed, and cause remanded, with directions.

Plaintiff in error (hereinafter called the defendant) was, upon a verdict of guilty, adjudged to be the father of an illegitimate child born to Lulu Pietschman. Defendant sued out a writ of error to review that judgment.

Samuel E. Gross, of Milwaukee, for plaintiff in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., and Harold A. Lenicheck, Asst. Dist. Atty., of Milwaukee, for the State.

FRITZ, Justice.

[1][2] Defendant contends that the court erred in sustaining a verdict of guilty and in refusing to grant a new trial, although it had erred in charging the jury as to the presumption of innocence. On that subject, the court instructed the jury that, “in an action brought to establish paternity of an illegitimate child the defendant is presumed innocent until the contrary is proved.” The use of the word “until” in that instruction clearly constitutes error for the reasons stated in Roen v. State, 182 Wis. 515, 196 N.W. 825;Riley v. State, 187 Wis. 156, 203 N.W. 767;Cobb v. State, 191 Wis. 652, 211 N.W. 785;Wille v. State, 192 Wis. 224, 212 N.W. 260;Nelson v. State, 210 Wis. 441, 245 N.W. 676. No instruction correcting that error or otherwise charging the jury more fully as to presumption of innocence was given by the court. Consequently, although the court otherwise duly instructed that guilt could not be found unless it was proven beyond a reasonable doubt that defendant was the father of the child, we cannot conclude, as was done in Cobb v. State, supra (in which the court otherwise fully and correctly instructed as to the presumption of innocence), that the jury could not have been misled in view of the instructions in their entirety. However, the established rule in this state is that, although such an instruction is error, it will not be considered so prejudicial as to necessitate a reversal of the judgment, if proof of guilt is persuasively established. But if, on the other hand, the proof is not persuasive, then such an erroneous instruction may be held to constitute prejudicial and reversible error. Nelson v. State, supra; Wille v. State, supra;Riley v. State, supra; Roen v. State, supra. In view of that rule, the ultimate and controlling issue on this appeal is whether or not guilt is persuasively established by credible evidence.

Undisputed evidence established that the complainant was 21 years of age and unmarried; that on May 2, 1933, after an apparently normal period of gestation, she gave birth to a child; that her last menstrual period began July 16, 1932; and that the child was probably conceived as the result of intercourse in July or August, 1932. Complainant lived with her parents in the Franklyn Arms apartment building in July and August, 1932, and until January 6, 1933, and in the Kalt apartment building from January 6, 1933, until 4 days before her child was born. Her father was janitor of those buildings while residing in them. She assisted him in cleaning, and also did some work for some of the apartment tenants.

The defendant, a married man, 40 years of age, and a painter by trade, also resided with his wife and infant child in the Franklyn Arms apartment in 1932. He did some painting there in part payment of his rent, and also assisted complainant's father in other respects. Subsequently, he and his family also moved to the Kalt apartments, and he likewise did painting there in part payment of his rent, and otherwise assisted complainant's father. Prior to, as well as after August, 1932, and until May, 1933, complainant was frequently employed by defendant's wife, who was engaged in teaching school, to take care of their child in defendant's apartment.

Complainant testified that, while she was cleaning a corridor of the apartment building during the first week in August, 1932, the defendant invited her into his apartment for some root beer;...