Windahl v. State

• Citation: 207 N.W. 694,189 Wis. 424
• Parties: WINDAHL v. STATE.
• Decision Date: 09 March 1926
• Court: Wisconsin Supreme Court

189 Wis. 424

207 N.W. 694

WINDAHL

v.STATE.

Supreme Court of Wisconsin.

March 9, 1926.

Error to Circuit Court, St. Croix County; George Thompson, Judge.

Olaf Windahl was found guilty of being the father of a bastard child, and he brings error. Reversed and remanded.

March 31, 1924, one Bertha Brewer was delivered of a bastard child, and on October 4th she made complaint charging the plaintiff in error with being the father. He pleaded not guilty, and upon trial in January, 1925, was found guilty. The complaining witness testified to first driving out on Saturday June 1, 1922, she then a girl of about 17, with the defendant below, about 36 years old, a married man living with his wife and two children. She testifies to meeting him thereafter every Saturday night with but two or three exceptions until November, 1923, when defendant went to California. Defendant denied the charge and offered considerable evidence as to his being with his family and not with the complaining witness on two of these Saturday nights, the dates of which were positively testified to by the complaining witness as of the first intercourse and as of the time of the conception respectively. From the judgment below the defendant sued out this writ of error.W. T. Doar, of New Richmond, for plaintiff in error.

H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and W. R. Kirk, Dist. Atty., of Hudson, for the State.

ESCHWEILER, J. (after stating the facts as above).

As there must be a new trial, we deem it unnecessary to comment on the evidence.

[1] During the trial the plaintiff in error, hereinafter designated as defendant, offered to prove by a number of witnesses, all residents of Hudson, where he had lived for some 13 years, that his reputation for chastity and morality was good in that community. This was objected to and the objection sustained. Defendant assigns this ruling as error.

The general rule in other jurisdictions, as stated in 7 C. J. p. 992, is to the effect that in bastardy proceedings the defendant may not, as he may in ordinary criminal proceedings, introduce evidence of his general good character or reputation unless he has been first impeached as a witness. In jurisdictions so holding, however, bastardy proceedings are considered, either by express statutory language or by judicial rulings to be civil, rather than criminal proceedings, and for that reason such exclusion of that class of evidence has been sustained.

We have no statute expressly declaring them to be in either classification. Such proceedings have been held to possess the characteristics of both, and it was suggested that the rules and practice applicable to criminal actions are applicable in bastardy proceedings so far as they are similar to criminal actions, and the same rule as to the features similar to civil actions in Goyke v. State, 117 N. W. 1027, 1126, 136 Wis. 557, 559. Again, it is said that it is a statutory proceeding to enforce a civil obligation or duty, but as to procedure is criminal in form. State ex rel. Volkmann v. Waltermath, 156 N. W. 946, 162 Wis. 602.

The statutes and decisions in this state as to bastardy proceedings demonstrate that although they be hybrid in nature, they have not been sterile or unfruitful in raising many perplexing questions. Though brought to enforce a civil obligation or duty as specified in the cases above cited, yet a person charged is brought into court by warrant and arrest and not by summons, section 166.01; the accused is entitled to the removal of the place of trial of any such action just as in a criminal examination before a justice of the peace, section 166.02; the rule for taxation and payment of costs therein shall be the same as in criminal proceedings, except that the accused may not have his witnesses paid or counsel appointed for him, section 166.07. Though by express statute, section 166.07, the district attorney is charged with the duty of appearing in and prosecuting such cases, yet that does not exclude the right of private counsel to act for or assist in such prosecution. Smith v. State, 130 N. W. 894, 146 Wis. 111, 113, 33 L. R. A. (N. S.) 463. In case of failure to give proper security and default in payment of the judgment, he shall be committed to jail, section 166.10; yet when so committed he is not entitled to jail liberties, Hodgson v. Nickell, 34 N. W. 118, 69 Wis. 308, 311.

[2][3] These proceedings,...