Bartell v. State

106 Wis. 342 | Wis. | 1900

Maeshall, J,

Two doctors were allowed to testify as experts oh the part of the state regarding whether it is reasonably necessary, in giving the massage treatment to a woman, to require her to expose her person to the view of the operator and whether it is customary where the operator is a man. The witnesses testified that they, as physicians, were familiar with the massage treatment, the methods employed in giving it, and the reasonable requirements on the part of the patient in order to receive such treatment. That sufficiently demonstrated that the witnesses possessed special knowledge of the subject upon which they were allowed to testify.

Evidence was excluded as to BartelVs having cured a person, by his method of treatment, afflicted with rheumatism. That is assigned as error upon the theory that BartelVs ability to beneficially treat a person afflicted with disease was material. The exclusion of the evidence was not harmful, because the court instructed the jury distinctly that whether Bartell possessed the power he supposed or pretended he possessed was not a subject for their consideration, that the only question for them to decide was whether, in the manlier he proceeded to treat his patient on the occasion in question, he acted in good faith, or because of the manner he administered treatment to the patient he needlessly caused her to submit her body to him for the gratification of his evil desires. The question was, as in substance stated by the trial court, whether he'so violated rules of propriety by needlessly causing his patient to submit herself to him, pretending, and causing her to believe, that such submission was a necessary incident of the treatment for curative purposes which she solicited at his hands, that his conduct assumed the character of a trespass upon her person.

'Error is assigned because the court allowed an attorney privately employed to conduct the case for the prosecution, after the district attorney had taken part in the case in his capacity as public prosecutor. The answer to that is that the law does not impose upon district attorneys the duty of prosecuting a person charged with the offense of assault and battery. They are expressly exempted from it by subd. 2, sec. 152, Stats. 1-898. Eo requirement of the public prosecutor for "Waukesha county, to appear as such in criminal trials in the municipal court for the Eastern district of such county enlarges his statutory duty as to the kind of offenses that he must prosecute in his official capacity. The legislative policy is clear, as indicated in the section of the statute referred to, that in assault and battery cases there shall be no restraint upon the liberty of persons to privately employ counsel to prosecute.

Some criticism is made of the instructions given to the jury, but we are unable to discover any harmful error in them. The jury were told, in substance, and in language that could not reasonably have been misunderstood, that if Bartell treated his patient in good faith, for the purpose of curing the disease with which she was supposed to be afflicted, and in good faith caused her to expose her body to his view for the purposes of such treatment, his conduct did not constitute the offense of assault and battery; but if, on the other hand, he needlessly caused such patient to expose her person to his «view for his evil purposes, and she submitted because of her ignorance, and under those circumstances and for such purpose he secured the opportunity of laying his hands upon her body, he was guilty of the offense of assault and battery. . There was no error in the charge so understood,' and none would be claimed by counsel for the plaintiff in error. The counsel discovered what he deemed to be harmful error by looking at isolated sentences and clauses in the instructions given to the jury, instead of examining the charge as a whole and as the jury must have understood it.

The law relating to physical violations of the persons of females, accomplished by such a species of fraud or imposition. as may be exercised by a person under the pretense of necessity or authority, where the violator, because of his position, has exceptional opportunities for thus imposing upon his victim, is too well known to need any discussion here. It is not liable to be too often or too rigorously enforced. It was properly administered in this case so far as we can discover from the record. The assignment of error that the verdict is contrary to the evidence is not well taken. There is ample evidence to sustain it and no reversible error in the record.

By the Oourt.— The judgment of the municipal court is affirmed.