217 Wis. 231 | Wis. | 1935
Lead Opinion
The first question involved is whether under any circumstances the state is entitled to a new trial in a bastardy action. At the outset it should be said that the answer to this question depends, not upon what name be given to the action, but whether the defendant in bastardy proceedings is charged with or prosecuted for a crime. Both the federal and state constitutions provide that no person for the same offense shall be put twice in jeopardy of punishment. Selections at random from the state and federal constitutions, dealing with the rights of those accused of crime, are as follows : “No person shall be held to answer for a capital, or otherwise infamous crime, . . . nor shall any person'be subject for the same offense to be twice put in jeopardy of life or limb.” Art. V, Amendm. U. S. Const. “No person shall be held to answer for a criminal offense without due process of law, and no person for the same offense shall be put twice in jeopardy of punishment.” Sec. 8, art. I, Wis. Const. These constitutional provisions are concerned solely with the rights and immunities of persons accused of crime. It is this fact that arouses the operation of the protective features of the constitution, and not the form of the action to which defendant is subjected. Cer
“It has characteristics of both, and as to such as are similar to those of criminal actions the rules and practice therein are applicable, and as to such as are the same or similar to those of civil actions the rules and practice therein are applicable.”
It is not to be denied that the hybrid character of the proceedings has created confusion and difficulty. The trial of a bastardy action in many important respects is governed by procedural rules more favorable to the defendant than those applicable to- civil actions. This is doubtless because, while not a criminal prosecution, the action is based upon a criminal act and one involving sufficient moral turpitude to subject defendant to a loss of reputation if established. The action involves a serious charge and one that is easier to make than to meet. In other civil actions involving fraud or crime as an essential part of the cause of action, the law of procedure has required a degree of proof greater than that required in ordinary civil actions. Upon much the same principle, it has applied rules of criminal procedure to bastardy cases. This does not make bastardy a criminal prosecution or a criminal action. While it has been termed a quasi-criminal action, this designation is extremely misleading unless treated as
However, because of the criminal procedure held applicable to bastardy actions, it is evident that the discretion of the trial court to grant a new trial is measurably limited. The defendant must be found guilty beyond a reasonable doubt, and that degree of certainty must be the standard used in treating with a motion for a new trial on the part of the plaintiff. A verdict of-acquittal cannot be set aside merely because it is against the preponderance of the evidence. Hence, if this order depends for its validity upon such a finding by the trial court, it cannot be sustained. But the order purports to be made in the interests of justice. If it is such an order, the limited character of our review has been so frequently defined as to require little exposition here. The sole question is whether the trial court, under a misapplication of the law, found the verdict to be against the preponderance of the. evidence, and for that reason set aside the verdict in the interest of justice. ,It is., apparent that the trial-.court had in tnind the true rulé for measuring the evidence in cases of this character. In the charge to the jury the court said:
“The defendant is not obliged to prove his innocence. The law presumes that he is innocent, and this presumption of innocence which the law raises in his favor prevails through*236 out the trial and at its close, and is alone sufficient to entitle the defendant to an acquittal unless it is overcome by testimony which satisfies'the jury that he is guilty beyond a reasonable doubt.”
While the memorandum filed by the trial court is largely devoted to the question of whether the verdict is against the weight of the evidence, we are of the opinion that the phrase used was descriptive of the estimate of the court after weighing the evidence with the correct rule in mind and in determining that the interests of justice require a new trial. The court commented upon the conduct of the complaining witness and her parents which he appears to believe might have prejudiced the jury against the state’s case. The memorandum decision concluded with a statement to the effect that the court was of the opinion “that the verdict is plainly against the evidence and that the interests of justice require that the verdict be set aside and a new trial ordered.” We conclude that it was the court’s intention to grant the order for a new trial in the interests of justice; and we hold that there was no abuse of discretion. McCoy v. Terhorst, 188 Wis. 512, 205 N. W. 420.
By the Court. — Order affirmed, and cause remanded for further proceedings according to law.
Dissenting Opinion
(dissenting). I dissent solely from that portion of the opinion of the court sustaining the trial court’s order as one made in the interests of justice. While in terms the order purports to be one made in the interests of justice, it is clear to me from an examination of the trial court’s memorandum that the order granting a new trial was based upon a conclusion that the verdict was against the preponderance of the evidence, and that it proceeded from an erroneous view of the law. The memorandum is almost entirely devoted to a discussion of the question whether the verdict is against the preponderance of the evidence, — a wholly im
I am authorized to state that Mr. Chief Justice Rosen-berry and Mr. Justice Nelson concur in this dissent.