69 Wis. 32 | Wis. | 1887
The complaining witness was born in Janu-aiy, 1862, and was never married. The accused was five or six years older. Without going into details, we have 'no hesitancy in holding that there is plenty of evidence to sustain the verdict.
Numerous errors are assigned and vigorously urged by the learned counsel for the plaintiff in error.
1. It is urged that the circuit court got no jurisdiction, because Baker never waived an examination, and never had an examination before a qualified justice of the peace. This is based upon the claim that the village was a separate, independent organization; that the justice resided therein; that he was elected by the electors of the town and village of Sparta combined, and not by the electors of the village alone, as he should have been. Assuming such to be the facts, still, as there was such an office de fire in the village as justice of the peace, and as the person who here acted as such was ostensibly elected to fill the office, we must regard him as being such officer, at least, de facto, and hence must hold that his authority for performing such official acts cannot be inquired into collaterally in this action. Such has been the uniform ruling of this court. In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 521; Laver v. McGlachlin, 28 Wis. 364; State v. Bartlett, 35 Wis. 293; C. & N. W. R. Co. v. Langlade Co. 56 Wis. 627-629; Cole v. Black River Falls, 57 Wis. 110.
2. Error is assigned because the court did not confine the testimony to occurrences between the parties August 15, 1880. The complaint alleged that the child was begotten “ on or about ” that time. After the complainant had stated her previous acquaintance with Baker, the fact that he lived in the town in 1880-81, and his business there, she was
Eor similar reasons the objections made to the testimony of the witness Hall, as to admissions made by the accused in June or July, 1880, were properly overruled.
3. The girl had, in her testimony, described the place in her father’s woods pasture where the accused met her, and committed the offense; that she and her father walked from the spot to their house in nine minutes; that her father had made a correct map of the premises, from which she described the location to the jury, and the manner of their meeting. Her father was then sworn, and without objection described the premises; that the girl went down in the pasture with him, and showed him where she met the accused, August 15, 1880; and that he made the map, and marked the spot on it as well as he could. Exception is taken because he was then allowed to answer this question, “ Where is the spot that F. told you she met defendant on the 15th? ” The objection was general, and we think properly overruled. If it was error at all, still the testimony thereby elicited was so immaterial that it could not have misled the jury, and must therefore be disregarded..
4. Exception is taken because the prosecution, after having called Lafe Richards as their own witness, were allowed to put leading questions to him. It appears that previously
5. Exception is taken because the accused’s counsel was not allowed to ask his witness Isham this question: “ State whether, at the time, he [Enoch Baker] told you, 11 am a friend of yours [the accused,] but I don’t like the old man, [his father.] 1 shall help James all I can. I believe it was a put up job. I think the Davidsons will swear to anything to beat him.’ ” The difficulty with this question was that no sufficient foundation had been laid for it by putting it as a whole to the witness Enoch Baker, or by putting the portion of it in italics to him .at all. The necessity for laying the foundation for such impeachment is well understood by the profession, and needs no repetition. Besides, Baker’s answers to the questions put to him on the part of the accused, as to his belief upon the whole matter, or as to some of the witnesses for the prosecution, was collateral and irrelevant to the issue on trial, and hence the accused was bound by them.
G. Exceptions were taken to remarks of counsel for the prosecution in opening and closing the case. In opening the case he stated, in effect, that the accused would introduce testimony touching the character of the complainant,
I. The court read to the jury an instruction requested on the part of the accused, and then followed it with this comment, to which exception is taken: “If there is any evidence, gentlemen, that the complainant was, at improper or suspicious times, in improper or suspicious relations with any man, it is proper for you to consider it as bearing upon this ‘question: whether this other man, and not the defendant, is the father of the child; but you are not at liberty to make any guess that is not founded upon the testimony, nor to found a verdict or conclusion upon mere suspicion, that you do not find arising from the testimony.” Having given the counterpart of the proposition at the request of the accused, there can be no valid objection to the more complete instruction as to the law applicable to the particular facts. Mere opportunity for intercourse is not very convincing as evidence. Freeman v. Freeman, 31 Wis. 242.
8. Exception is taken because costs were taxed against the accused for moneys expended in the prosecution by the count}'' in the payment of the fees of the clerk of the court, the sheriff and witnesses. As a general rule, costs, in this state, are purely a matter of statute. In re Carroll's Will, 53 Wis. 228. Our statutes in cases like these are specific. The issue upon the trial of every such cause must be whether the accused is guilty or not guilty. Sec. 1535. If he is found guilty, he must be adjudged to be the father of the child, and stands chargeable with its future maintenance in such sum and in such manner as the court directs, and also for all expenses incurred by such town or county, or by the mother of the child for the lying-in and attendance of her during her sickness, and also for the care and support of such child since its birth, and for the costs of the prosecution,— all of which matters are to be ascer-
By the Court.— The judgment of the circuit court is affirmed.