186 Wis. 214 | Wis. | 1925
It is the contention of the defendant that since there is such a discrepancy between the testimony of the complaining witness as to the time she said she left the Kalt Bakery and the record of the bakery of the time she left, as well as of the time she began to work and claimed she became acquainted with the defendant, her testimony is not to be believed and that there was no competent, credible evidence upon which to base a conviction. The credibility
It is further claimed that the instruction set out is subject to the criticism which this court, in Menn v. State, 132 Wis. 61, 112 N. W. 38, made upon one given in that case, which read as follows:
“If you are not satisfied beyond a reasonable doubt under all the evidence that the sexual act took place between these parties on the 16th of October, 1904, at the place alleged, the defendant is entitled to an acquittal, unless you find from the evidence in this case that the defendant did have sexual intercourse with the complainant at some other time and place within the period of gestation.”
In that case there was no other act of intercourse testified to but the one of October 16, 1904, and yet the cpurt told the jury they could convict upon an act not testified to at all. Of course that was prejudicial error. In the case at bar the court simply told the jury that though the complaining witness might have been mistaken as to the exact date of the intercourse, nevertheless if they found that the acts which she testified to actually took place and resulted in the birth of the child they could convict though there might be doubt as to their exact date. Such is the law, and such an instruction is radically different from one saying you may convict
Ry the Court. — Judgment affirmed.