186 Wis. 210 | Wis. | 1925
Lead Opinion
Two questions are raised in this court: Was the lower court in error in granting a new trial because
“Members of the jury, it is not necessary that the state prove the exact date on which the woman became pregnant, but the fact of intercourse must be shown to have occurred on such a date as will satisfy you that the infant was the result of it.”
In granting the order for a new trial the trial court said:
“After due deliberation, I am inclined to hold that the instruction excepted to is erroneous in conveying to the jury the idea that though they disbelieved the complaining witness as to the only occasion when she testified sexual intercourse occurred, they might nevertheless legitimately conclude that there had been some other occasion.”
Defendant’s chief reliance to sustain the order is placed on the decision of this court in Menn v. State, 132 Wis. 61, 112 N. W. 38. It should be noted that the decision in that case was prior to the enactment of sec. 3072m, Stats., which reads:
“No judgment shall be reversed or set aside or new trial granted in any action or proceeding, civil or criminal, on the ground of misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure the new trial.”
In Heintz v. Schenck, 176 Wis. 562, 569, 186 N. W. 610, it was held that no judgment should be set aside for misdirection of the jury unless the court could say, from an examination of the whole record, that it affirmatively appeared with reasonable clearness that harmful error was made affecting the substantial rights of the party in a mate
The defendant contends that the verdict of the jury was perverse and not sustained by credible evidence. There is nothing incredible in complainant’s testimony, unless it be said it was overwhelmingly impeached by evidence of defendant being elsewhere at the time the sexual act was claimed to have taken place. The defendant claimed that he was at a basketball game the afternoon of April 2d, a short distance from Milwaukee, and when he returned he went with his companions directly to a friend’s home, where he played cards until midnight. He was supported in this claim by several companions. But this court has held that the jury may'believe the complaining witness and disbelieve the defendant’s witnesses where there is nothing in the physical facts to make such evidence incredible. O’Keefe v. State, 177 Wis. 64, 187 N. W. 656, and cases there cited. The defense of an alibi, if sufficiently established to raise a rea
From a careful study of the evidence we are satisfied that the court was fully warranted in submitting the case to the jury.
By the Court. — The order of the civil court is reversed, and the cause remanded for further proceedings according to law.
Dissenting Opinion
(dissenting). Under the facts in this case, the complainant testifying to but one occasion, identifying the date absolutely, and the defendant meeting the testimony thus squarely presented by testimony which would amply warrant a verdict in his favor, I feel that the charge permitted, if not invited, the jury to speculate rather than to determine. Menn v. State, 132 Wis. 61, 112 N. W. 38. There was no “on or about” the designated date, or any admission of intercourse at other times, as in People v. Swanson, 217 Mich. 103, 185 N. W. 844. It well might also indirectly, but none the less effectually, tend to disparage the defense of alibi so recently discussed in Roen v. State, 182 Wis. 515, 196 N. W. 825.
Therefore I think the trial court was justified in granting a new trial.