231 Wis. 616 | Wis. | 1939
The verdict upon which the judgment in this case is founded is based solely upon the testimony of the complaining witness. She testifies that she had never met plaintiff in error until October 20, 1935; that she attended three dances with him, one on October 20, 1935, the second on October 27th of the same year, and the third on November 10, 1935; that she had intercourse with him on each of these occasions, and that she had never had intercourse with him or anybody else before or since; that her last menstrual period was November 10th, which was the occasion of her last relations with plaintiff. The child was born August 21,
Upon the above facts there was clearly a jury question. There were, however, circumstances which give rise to considerable misgiving as to the truth of the story told by complaining witness. She admitted her untruthfulness in denying upon preliminary examination that she had gone to a car with another boy while attending one of the dances with plaintiff in error. In addition her testimony has about it certain elements of improbability, We pass as comparatively
In accordance with sec. 166.105, Stats., the trial court ordered a blood test of the parties involved. This section provides:
“Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court, by order, may direct that the complainant, her child and the defendant submit to one or more blood tests to determine whether or not the defendant can be excluded as being the father of the child. The result of the test shall be receivable in evidence but only in cases where definite exclusion is established. The tests shall be made by duly qualified physicians, or other duly qualified persons, not to exceed, three, to be appointed by the court and to be paid by the county. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings to the court or to the court and jury. Whenever the court orders such blood tests to be taken and one of the parties shall refuse to submit to such test, such fact shall be disclosed upon the trial unless good cause is shown to the contrary.”
“A positive exclusion can, however, be made in the case of Euclide, because an offspring with both factors M and N is not possible from parents with only the N factor. Furthermore, an offspring with group III blood (OB or BB) is not possible from parents with blood belonging to group I and II.”
The trial court, due to the failure to satisfy the calls of the statute, declined to admit this report. Plowever, it appears that a very strong factor in the original determination of the trial court to grant a new trial was the fact that while the report was not admissible in evidence, it appears to have been accurate and authentic and tO' point strongly to the innocence of plaintiff in error. While under the circumstances we are not here reviewing the discretion of the trial court but determining whether in the interests of justice we should grant a new trial, the record makes the same impression upon us that it did upon the trial court. In view of the several unsatisfactory and improbable aspects of the testimony, and in view of the positive exclusion of defendant by the blood test, however irregularly offered, we feel that in the interests of justice this case should be retried under circumstances that will give to plaintiff in error an opportunity to present in proper form medical conclusions based upon blood tests.
By the Court. — Judgment reversed, and cause remanded for a new trial.