92 Wis. 76 | Wis. | 1896
The errors alleged are, for the most party in the admission and rejection of evidence, and to the charge of the court. It will be necessary to consider some of the- ' more important. They relate, in the main, to the rejection of evidence tending to show a want of chastity in the woman,. Lizzie Stewart, at the time of her alleged seduction. This class of evidence is proper to be received for the purpose of mitigating the damages; for, surely, if she was unchaste-previously to defendant’s intercourse with her, the plaintiff would be less damaged than if a previously chaste daughter had been debauched. Besides, it tends to make doubtful that the defendant is responsible for the pregnancy and the loss of service consequent upon it. Want of previous chastity may be proved by general reputation and specific acts of unchastity, not only, but by evidence which tends to show impure conversation and improper and familiar association with men. West v. Druff, 55 Iowa, 335. The court in that case very cogently remarks, “ Conversations, acts, and associations are manifestations of character, and constitute the true index of the heart.” Even acts of an equivocal character may be competent to be received on this question; for it is the province of the jury to determine what such acts indicate, and to give to them their proper value, in the light of all the circumstances. This principle seems to have been recognized by the trial court, but he seems to have applied it with exceeding illiberality towards the defendant. The following are some examples:
The defendant asked the witness James Hayes, who was a hack driver, this question: “ I will ask you, Mr. Hayes, if at any time prior to June, 1893, you drove Lizzie in your hack, in company with a certain gentleman, whose name you need not mention, with the curtains of the hack closed, and drove around the city, going to no particular place?” This question was objected to as “ incompetent, irrelevant, and immaterial.” The court asked, “ How is this material? ”
A witness, J. M. Ingram, keeper of an hotel at Menomonie, was asked: “ I will ask you if, on the 13th day of June, 1893, Miss Stewart stopped at your hotel ? ” The question was objected to, and the objection was sustained. No ground of the objection or ruling is stated. Nor did the defendant’s attorney, so far as appears, state what he expected to prove by the witness. As it appears on the record, it is. mere trifling. Of course, the question was of an immaterial fact, if the fact embraced in the question was all that was proposed to be proved by the witness. But, if the question was only introductory to the real purpose, it was competent. Erom some conversation between the court and counsel, it is inferred that it was understood that the question ■was merely introductory, and that the ruling was understood to cover the competency of the evidence proposed to be introduced. What was proposed seems to be indicated by a remark of the witness: “ I thought they either went walking or riding. One gentleman is all that I remember of.” Probably the evidence was competent. But the defendant’s attorney has failed to make it apparent to this, court that it was so.
A witness, W. H. Nichols, who testified that in the summer of 1893, and previous to August of that year, he saw the woman, Lizzie, accompanied by a young woman of the-town, several times, in the evening and night-time, going to' certain rooms, over the store of his employer, which were-
The woman, Lizzie, had testified that at about the time of the alleged seduction, and previously, she had been several times riding with the defendant. This was one of the circumstances which it was claimed led up to and accompanied the seduction. This the defendant denied. She named one John Stannick as an eye-witness to one of these occasions. Stannick was called, and asked, “ Did you know of Smith’s going out riding with Lizzie at any time?” An objection was sustained. It seems that it would be relevant to contradict her on this point. The evidence of the defend
The defendant testified on cross-examination that he had paid money to a doctor for services to Lizzie at the time of her confinement. On re-examination he was asked by his counsel to explain the circumstances, showing why he paid it. He was not permitted to do that. An objection was sustained. It is elementary that he had a right to make the explanation. Unexplained, the fact was susceptible of damaging inference, while a proper explanation might render it harmless. At least, the defendant was entitled to have the circumstance placed before the jury in its real setting and significance, so that the jury might draw the true inference from it.
It is evident, from the whole case, that the defendant did not have a fair trial.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.