| Wis. | Mar 11, 1924
The plaintiff in error contends that it is an established fact in this case that Beardsley married the complaining witness in January, 1922, then knowing that she was pregnant with child by another than himself and that thereby such became in law the legitimate child of Beardsley.
This contention as to the fact is based entirely upon her answer “Yes” to the question, “Did you tell Mr. Beardsley, your husband, that you ‘were pregnant, before you married him ?” The court promptly sustained, after the answer was given, defendant’s objection to the competency of the witness to so testify, but no motion to strike out answer or question was made. Assuming, therefore, that such were left in the record, yet we cannot give them the weight or importance contended for by defendant. It is left uncertain whether the witness meant to say that before marrying Beardsley she told him of her pregnancy, or that after marriage she told him of her prenuptial pregnancy. The inflection used or pauses made in the question as actually asked of the witness, and not possible, of course, of accurate reproduction in the record, might make a substantial difference in the meaning intended by the affirmative answer. The defendant was content to leave the record in that indefinite form and cannot now complain if his particular construction
There haying been first proven by ample evidence from others than complainant the impossibility of access by Beardsley at the time of conception, there was no error in admitting complainant’s testimony as to intercourse with defendant.
The use in the charge to the jury of the term “bastard” in referring to the child was clearly error as assuming as a fact that the child, born in wedlock, was illegitimate — the very question to be determined by the jury. This, however, was promptly cured by the court upon its being called to his attention and affords no support for the assignment of error on this point.
The record amply vindicates the judgment.
By the Court. — Judgment affirmed.