Stresney v. State ex rel. Bean

Vinje, C. J. 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 [216] of the evidence was for the jury. They may well have believed that though she was mistaken as to the time of entering and leaving the employ of the Kalt Bakery she was not mistaken as to when and with whom she had her first acts of sexual intercourse. Or the jury may have questioned the correctness of the record produced, which consisted of entries made by the bookkeeper, though it is more than probable that they gave it full credence and concluded that the complaining witness was mistaken as to when she entered and left the employ of the bakery, but was not mistaken as to the time and place of intercourse. We cannot say that this discrepancy in the testimony leaves the conviction unsupported by the evidence. 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 [217] upon acts not testified to at all, as was the one given in the Menu Case. Ry the Court. — Judgment affirmed. Eschweiler, J., dissents.