206 Wis. 150 | Wis. | 1931
At the time of intercourse the complaining witness was twenty-one years of age, weighed about one hundred twenty pounds, and was in vigorous normal health. She testified that the last act of intercourse with the defendant was on April 6, 1930, two days after her monthly sickness. She also had her customary menses ending on the 6th of May, except that they lasted two days instead of the usual four days. When her menses did not recur in June, she suspected that she was pregnant. While she testified to previous acts of intercourse with the defendant, she Was positive that no act occurred after April 6, 1930. The complaining witness said nothing about her pregnancy to any of her relatives until she told her parents about Christmas time and made no charges against the defendant although she testifies she had it in her mind to do so. Early in the month of February she consulted a physician at Marathon City, went to see the district attorney, and on the 4th of February she went to the city of Milwaukee to be confined, where she was delivered of a full-term, normal child, weighing eight pounds two ounces, on February 20, 1931. There is no history of any illness of the complaining witness nor any circumstance that would tend to indicate anything but a perfectly normal, regular pregnancy.
The only expert sworn was Dr. J. M. Freeman of Wausau, who testified that the average pregnancy from the time of conception is 280 days; that in exceptional cases babies have been in útero for ten months. Upon cross-examination
There was no evidence indicating that the child when born had any other characteristics than those to be expected in a normal child. The plaintiff testified that she had never at any time had intercourse with any other man. Upon her testimony the period of pregnancy was 320 days, being twelve days beyond eleven lunar months, the ordinary period being ten lunar months.
The question presented here is whether or not upon this testimony the jury may find beyond a reasonable doubt that the defendant is the father of the child. The medical testimony in this case as well as the medical literature to which we have been referred, indicates that while such cases of extended pregnancy as this are not unknown, they are extremely rare. The whole matter is discussed in Estate of McNamara, 181 Cal. 82, 183 Pac. 552. In that case the last intercourse was 304 days prior to the birth of the child and the court held that beyond a reasonable doubt the husband was not the father of the child. Although that case related to the application of the presumption of legitimacy rather than paternity of a bastard child, the cases were brought together and exhaustively reviewed. It would serve no useful purpose to review the cases. More cases have arisen regarding the application of the presumption of legitimacy than with respect to paternity in bastardy cases.
In view of the extraordinary length of the period of pregnancy, as to which, under the testimony of the complaining witness, there can be no doubt, and the fact that there is
We are well aware that these are matters ordinarily for the jury; that the evidence need not be sufficient to convince the court; that it is sufficient to sustain a verdict if upon the evidence the jury may find the fact in question beyond a reasonable doubt. Against these few scattering cases there is the vast common experience of mankind with the regularity of the course of nature in this respect both as regards man and the mammals generally. If there was any evidence of a delayed pregnancy, if there was any evidence that the child when born, exhibited signs of a protracted pregnancy or other untoward circumstance, the case might be quite different. While the complaining witness in this case has had a
By the Court. — Judgment reversed, and cause remanded for a new trial.