DeMund v. State
166 N.W. 328
Wis.
1918
Check Treatment
Kerwiet, J.

Thе principal error assigned is that the court below excluded evidence offered by the dеfendant to the effect that during the time the bastard child was begotten, namely, during the fore part of December, 1915, the complaining witness, mother of the bastard child, associated with men other thаn the defendant, at times and under circumstances indicating that she might have had illicit intercourse with thеm.

*41Early in the trial counsel for defendant asked Mrs. Brown, with whom complaining witness boarded in December, 1915, whether the complaining witness stayed at home evenings while she was boarding with her. The question was objected to by counsel for the state as incompetent,'irrelevant, and immaterial, and thе objection sustained. The district attorney then stated to the court that counsel was trying to show general habits, to which counsel for defendant replied that he wanted to make a record. The trial judge stated that if he had made a mistake the question showed it. Counsel for defendant then stated that he would make the offer after recess, whereupon the judge again remarked thаt if he made a mistake counsel’s question clearly showed it.

The following day, at the close оf the evidence, ‍‌‌​‌‌​​‌​​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍counsel for defendant made the following offer:

■“If the court please, I would like to make that offer that we wanted to make yesterday on the record with referеnce to Mrs. Brown. This is with reference to the testimony of Mrs. Mary Brown.
“We offer to prove by this witness that during the time that the complaining witness, Babe Lewis, stayed with her, which was during the first two weeks of December, 1915, thаt the complaining witness, Babe Lewis, was out evenings at least six out of seven days of each wеek, and that she was out until 2 and 3 o’clock in the morning; that she came with different gentlemen escоrts.”

This offer was objected to as incompetent, irrelevant, and immaterial, ‍‌‌​‌‌​​‌​​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍and not proper to be made at that time. The court then said:

“The record clearly shows that if there was anything in the record, that if they could show anything with reference tó the relations between Breese аnd the complaining witness, that they were entitled to do so, but that outside of that her conduct was immaterial.”

It is plain from the record that the court intended to and did rule out all evidence of the conduct of complaining witness with other men than Breese. The evidence ruled out *42and complained of was not ruled out on the ground that it was not seasonably offered, but upon the ground thаt it was not competent or material. The court obviously, from the time evidence ‍‌‌​‌‌​​‌​​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍was offеred of the nature of the evidence ruled out, knew the character of the evidencе which counsel desired to put in, and excluded it on the ground that such evidence was not proрer.

We are of opinion that the court erred in excluding the evidence. Zweifel v. State, 27 Wis. 396; Humphrey v. State, 78 Wis. 569, 47 N. W. 836; Kelly v. State, 133 Ala. 195, 32 South. 56, 91 Am. St. Rep. 25; 7 Corp. Jur. 990; Burris v. Court, 34 Neb. 187, 51 N. W. 745. The foregoing cases and others which might be cited show that where the evidence is conflicting as to whether thе person charged in a bastardy case is the father of the bastard child, evidence of аssociation with men other than the defendant charged, about the time of probable cоnception, under suspicious circumstances of the character referred to in the testimony offered and excluded in this action, is admissible, and it is error to exclude it.

In Burris v. Court, 34 Ueb. 187, 191, 51 1ST. W. 745, the court said:

“In a prosecutiоn for bastardy it is competent for the defendant' to prove that, about the time the allegеd intercourse was had, the complainant was with a man other than the defendant, under suspicious circumstances. Especially is this true ‍‌‌​‌‌​​‌​​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍in a case like this, where the testimony is conflicting as to thе paternity of the child. The testimony was material and should have been received, leaving to the jury to draw their own conclusions therefrom/’ citing, amongst other cases, Zweifel v. State and Humphrey v. State, supra.

But it is contended that defendant was not prejudiced by the ruling. There was a sharp conflict in the evidence as to whеther or not defendant was father of the child. The defendant denied positively that he ever hаd or attempted to have intercourse with the complaining witness and offered. *43corrobоrating evidence to that effect. . There was evidence tending to show that the complаining witness had intercourse with another man about the probable time of conception, and other evidence tending to c^st doubt upon the question as to who was the father of the bastаrd child. The evidence offered, therefore, was proper for the consideration оf the jury and it was prejudicial error to exclude it.

Some other errors are assigned and discussеd by counsel "which ‍‌‌​‌‌​​‌​​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌‌​‌‌​‌​​‌‌‌‌​‌‌‌‍in our view of the case do not require treatment.

By the Court. — The judgment is reversed, and the cause remanded for a new trial.

OwEN, J., took no part.