215 Wis. 658 | Wis. | 1934
The intercourse, which resulted in the conception and birth of the child involved in this proceeding, occurred during the four weeks preceding October 15, 1932. During all of that period the complaining witness, Ruth Ellis, was a married woman, residing with her parents in the city of Fond du Lac; and her husband, Earl Ellis, resided about thirty-three miles from that city on a farm, where he worked while on parole after a conviction for abandonment. He had gone to neighboring farms and, at least once, to Fond du Lac.
As the child was conceived and born during the period of wedlock, it is, under the law in this state, presumed to be legitimate; and the most clear and conclusive proof of non-access is required to bastardize a child born under such circumstances. Mink v. State, 60 Wis. 583, 19 N. W. 445; Watts v. Owens, 62 Wis. 512, 22 N. W. 720; Shuman v. Shuman, 83 Wis. 250, 53 N. W. 455; Riley v. State, 187 Wis. 156, 203 N. W. 767; State ex rel. Reynolds v. Flynn, 180 Wis. 556, 564, 193 N. W. 651; Estate of Lewis, 207 Wis. 155, 158, 240 N. W. 818. In respect to non-access, this court has said that—
“Testimony of the wife even tending to show such fact, or of any fact from which such non-access could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously kept out of the case; and such non-access and illegitimacy must be clearly proved by other testimony.” Mink v. State, 60 Wis. 583, 585, 19 N. W. 445; Watts v. Owens, supra; Shuman v. Shuman, supra; State ex rel. Reynolds v. Flynn, supra;
and that—
“No rule of evidence is better settled than that husband and wife are 'alike incompetent witnesses to prove the fact of non-access while they lived together.” Shuman v. Shuman, supra.
The court and counsel recognized those rules on the trial of the case at bar. However, the prosecuting attorney, in his zeal to discharge the burden which required the most
Aside from that incompetent testimony, the record is devoid of such clear and conclusive evidence of non-access as is required in order to sustain an adjudication which bastardizes a child, and, consequently, defendant’s motion for a discharge should have been granted.
By the Cottrt. — Judgment reversed, and cause remanded with directions to enter judgment discharging the defendant.