Baker v. State, 69 Wis. 32

Baker v. State

69 Wis. 32 | Wis. | 1887

Cassoday, J.

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 *38allowed, against objection, to answer this question, “State how you have known him?” We discover no objection to this question, nor the answer in response to it. After stating that the two families both lived in the same neighborhood, within a half a mile of each other, and visited back and forth, she stated, without objection, in effect, that he began to pay particular attention to her in the spring of 1880; that in June, 1880, he asked her if she loved him, and she finally told him that she did; that July 5, 1880, they attended a dance, and danced and ate supper together; that he then informed her that he loved her, and wanted her to become his wife; that she consented, but that no time was set for the marriage; that the next time he paid her any special attention was a week after, at his uncle’s, when he took her riding in the evening; that the next time she received any special attention from him was on the evening of July 25, 1880, when he took her and his sister out riding, and then, after leaving his sister at her home, he took her out riding alone from 8 to 10 o’clock in the evening. She' was then asked this question, “ What occurred that evening when you was riding with him?” Thereupon counsel objected “ to any testimony in regard to any of these transactions, except at the time they claim the child was begotten, on the 15th day of August.” This objection was overruled by the court, and she then testified, in effect, to their attempted intercourse, not then accomplished by reason of its effect upon her. This was also given under objection. Were such rulings error? It seems to us they were not. The evidence elicited related to a time within the usual period of gestation,— in fact, much nearer the time ordinarily supposed for the conception of a child born when this was than the time named in the complaint. This was probably the principal objection to it. Had the jury been restricted to the shorter and more improbable time named in the complaint, it is possible they might have had more *39doubt as to the accused being the father of the child. But the time was not definitely fixed in the complaint. On the contrary, the time there named was preceded by the words “ on or about.” Absolute certainty in cases of repeated intercourse, or what is supposed to be attempted intercourse, even on the part of the mother, is not required. Hamilton v. People, 46 Mich. 186. Besides, as stated by Mr. Greenleaf: “ The birth of a child being liable to be accelerated or delayed by circumstances, the question is purely a matter of fact, to be decided upon all the evidence, both physical and moral, in the particular case.” 2 Greenl. Ev. §152.

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 *40one Enoch Baker had testified to certain statements made by Richards and others in the presence of the accused, and to certain admissions made by the latter tending to prove his guilt. In view of the several questions put to Richards, and the character of his answers to the same, we are inclined to think he was an unwilling witness. Besides, in such matters it frequently occurs that the actions of a witness on the stand speak much louder than his words. Eor this, and other obvious reasons, the time and circumstances under which leading questions may be put to a witness is a matter necessarily resting in the sound discretion of the trial court, and consequently a judgment will not be reversed on that ground, unless thei’e has been a manifest abuse of such discretion.

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, *41and as to what be tried to prove upon tbe former trial; but, upon objection being made, the court promptly ruled that he must confine himself to stating to the jury the cause of the prosecution, but that he must not state the cause of the accused to the jury. This was. certainly a sufficient protection to the accused from being prejudiced by anything thus stated. The remarks of counsel for the prosecution in his closing argument to the jury, to which exceptions are taken, are stated above. Ve are not prepared to say from the record that any portion of these remarks was prejudicial to the accused. Some of the remarks related to matters directly in issue; others, to matters more remotely or collaterally in issue. Some, apparently; in response to or suggested by remarks of opposing counsel. Of course, the remarks of counsel are to be restricted to matters in the case on trial. But this is not always confined to such evidence as is pertinent to the issue on trial. Other evidence frequently gets into a case by consent of parties or without objection. So there may be, and frequently is, some fact or circumstance occurring upon the trial which is properly open to the comment of counsel, and yet never becomes a part of the record in the appellate court by being incorporated into the bill of exceptions. Counsel necessarily have a broad latitude. "Where counsel on one side transcend their privilege, counsel on the other side may, without jeopardizing their case, follow them, and indulge in proper comments upon the same matter. Hoffmann v. State, 65 Wis. 46. This is substantially what is claimed to have been done here. The trial judge is necessarily familiar with all such facts and circumstances, as well as all shades of the evidence. He must necessarily have a broad discretion in such matters. Santry v. State, 67 Wis. 67. Error is not to be presumed in such a case. If counsel abuse their privilege, or the trial court its discretion, it should be made to appear affirmatively by incorporating all essential facts *42aucl circumstances showing it in the record. Hoffmann v. State, supra. We cannot say from this record that there ivas any such abuse of privilege or discretion.

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-*43tamed and fixed by the court, and inserted in the judgment. Secs. 1532, 1535, 1536. Such is to be the judgment in every case where the accused is found guilty, whether the complaint is made and the cause prosecuted by the mother of the child, or a member of the town or county board, or commenced by her and prosecuted by such board. Secs. 1530, 1539, 1540, E. S. The right to recover costs, thus .expressly given by statute, is just as imperative when the costs are very large, as here, as when they are very small.

By the Court.— The judgment of the circuit court is affirmed.