194 Wis. 385 | Wis. | 1927
The case presents a plain issue of fact upon the question of whether Joseph Poplowski is the father of the child born to Sarah Lewandowski, an unmarried woman. Upon this question there is a direct conflict in the testimony of these two interested parties, with no direct corroboration of either party. The testimony on this contested issue of fact was so evenly balanced that the trial judge in denying the motion for a new trial said: “Although if the court sat as a trial court and tried the issues of fact in this case, a different result might have been attained.”
Viewed from the standpoint of a case with the evidence so evenly balanced, the court is satisfied that the judgment must be reversed and a new trial ordered.
Defendant called a witness who testified that he and the prosecutrix were out in an automobile one evening with another couple. That the other couple left the witness and the prosecutrix alone in the automobile parked on a country roadside at night for about twenty minutes. He was asked what he and the prosecutrix did in the car while the other two people were gone. The court then instructed the witness as to his right to refuse to answer, if the answer would tend to incriminate him, and added: “If you want to stand upon your constitutional privilege, you have a right to do so. However, if you answer it voluntarily and the answer does tend to incriminate you, I will order your arrest.”
No question can be raised as to the right, if not the duty, of a trial court to instruct a witness as to his constitutional right to refuse to answer. But the trial judge did not confine himself to a statement of the constitutional rights of the witness. He threatened arrest. After this threat was made, the witness refused to answer and the defendant did not have the benefit of his testimony. Had the witness testified to the fact of intercourse with the prosecutrix, which the trial judge evidently thought was the purpose for which he was called, he would have presented proof which, if believed by
As the case must go back for a new trial, the court will not pass upon the other questions presented. But it would have been better practice for the trial court to have given the requested instruction as to the effect of proof of good character or reputation and to have refrained from stating in the presence ‘of the jury his interpretation of the testimony of the prosecutrix upon preliminary examination. However, the court is not prepared to hold that these rulings would lead to a reversal of the judgment, were it not for the threat to arrest which is considered above.
By the Court. — Judgment reversed, and cause remanded' for a new trial.
