#### Johnson, Plaintiff in error, vs. The State, Defendant in error.

*October 19*

November *5, 1907.*

*Witnesses: Examination: Leading questions: Discretion: Assignments of error: Correction of error by instructions: Criminal law and practice: Bastardy: Trial: Arrest of defendant’s witness: Harmless error: New trial: Judgments as evidence: Conclusiveness.*

1. It was within the discretion of the court in a giinsi-criminal prosecution to permit the district attorney to ask leading questions of the complaining witness, and to permit him to ask defendant’s witness if he drank anything yesterday.

2. In a guasi-criminal prosecution, during the cross-examination of one of defendant’s witnesses, the court asked him: “Are you the man I declined to naturalize today on account of being drunk?” *Held,*that the court removed any cause for complaint thereon by instructing the jury to disregard the fact that citizenship papers had been denied the witness.

3. In a bastardy proceeding remarks made by the court in denying a motion to dismiss the case for lack of proof of birth of a living child are *held*based on the testimony and proper.

4. In a bastardy proceeding it was not error to permit the complaining witness to hold her baby in her arms while giving her testimony, there being no attempt to offer the baby in evidence or to exhibit it to the jury.

5. During the progress of a bastardy proceeding a witness for the defendant admitted having had unlawful sexual relations with the complaining witness within the ordinary period of gestation, whereupon by direction of the court he was arrested on a charge of fornication. *Held,*that remarks of the court in directing the arrest, stated in the opinion, did not constitute error prejudicial to the defendant.

6. In a bastardy proceeding, although a witness for defendant testified to having unlawful sexual relations with the complaining witness within the usual period of gestation, her denial thereof, together with the other testimony, stated in the opinion, is *held*sufficient to support a verdict against the defendant.

*7.*In a bastardy proceeding a witness for defendant testified to unlawful sexual relations with the complaining witness within the usual period of gestation. A new trial was refused, the application being based on “newly-discovered evidence,” con*454sisting of the record of the conviction of the witness for the admitted offense of fornication with the complaining witness. *E'eld,*that thereby no error was committed, since the issues in the several proceedings were different, and the affirmative determination of one did not necessarily negative the other.

8. In a bastardy proceeding uncontradicted evidence of sexual intercourse at the critical time with some person other than the accused raises a reasonable doubt with reference to the paternity of the child.

9. Such rule goes only to the weight of evidence necessary to uphold a conviction, and does not conflict with-the rules of evidence relating to the admissibility and conclusive effect of judgments as evidence.

10.Such rule does not render either admissible or conclusive a judgment of conviction for the offense of fornication with the complaining witness, alleged to have been committed on a date 1 within the usual period of gestation, since such judgment does not logically or absolutely either afSrm or deny, in whole or in part, the guilt of the defendant in the bastardy proceeding.

ERROR to review a judgment of the circuit court for Price county: John K. Parish, Circuit Judge.

*Affirmed.*

The plaintiff in error was found guilty in a bastardy proceeding. The facts are sufficiently stated in the opinion.

For the plaintiff in error there was a brief by *Barry & Barry,*and oral argument by *A. K. Barry.*

For the defendant in error the cause was submitted on a brief by the *Attorney General*and *A. G. Titus,*assistant attorney general, and a separate brief by *W. K. Parkinson.*

Timlin, J.

The first error assigned is that the court erred in the reception and rejection of evidence, and this is attempted to be supported by showing that the court, against repeated objections of defendant’s counsel, permitted the district attorney to ask leading questions of the complaining witness, and permitted the district attorney to ask the witness Erick Erickson if he drank anything yesterday. We consider these rulings within the discretion of the court below and insufficient to support the assignment of error.

*455Tbe second assignment of error is that the court erred in its remarks on the relevancy and weight of testimony during the trial. This is attempted to be supported by showing that the court during the cross-examination of the witness Erick Erickson asked: “Are you the man I declined to naturalize today on account of being drunk ?” But the court in his instructions to the jury seems to have removed any cause of complaint on account of this question by instructing the jury to disregard the fact that citizenship papers had been denied to the witness Erickson. The remarks of the court in denying the motion of the defendant to dismiss the case for lack of proof of hirth of a living child were based on the testimony and we think proper.

The third assignment of error is that the court erred in permitting the complaining witness to hold a baby in her arms on exhibition before the jury while giving her testimony. There was no attempt to offer the bahy in evidence or to exhibit it to the jury, and the supposed infraction of the legal rules consisted merely in permitting the complaining witness to hold her baby in her arms while giving her testimony. This was not error, and does not bring the case within the rule of *Busse v.*State, 129 Wis. 171, 108 N. W. 64,,and cases cited.

The fourth assignment of error is that “the court erred in its remarks before the jury in ordering the arrest of the defendant’s witness Erick Erickson and in directing the clerk to set aside his, Erick Erickson’s, naturalization papers.” It is argued that this affected the credibility of the witness with the jury. The witness Erick Erickson was called on behalf of the defendant, and, after having been warned by the court of his right to refuse to incriminate himself, testified that he had unlawful sexual relations with the complaining witness during March and April, 1905. Upon cross-examination by the district attorney he testified substantially that he had been arrested and convicted for drunkenness, *456whereupon- tbe court asked tbe witness tbe question above referred to, and tbe witness denied that be was tbe man that the court declined to naturalize on account of being drunk. The district attorney then said: “I have here a warrant of arrest of -the witness for fornication.” Tbe court said: “The sheriff is instructed to arrest tbe witness Erick Erickson and take him in custody, and I hereby direct the clerk to set aside bis naturalization papers.” Tbe defendant’s counsel objected to tbe remarks of tbe court in tbe presence of tbe jury, as tending to prejudice them against tbe defendant. Tbe court said:

> “No man can become a citizen of tbe United States unless be proves by two witnesses that be is a man of good moral character and well behaved. Tbe statement be has made here shows that be is not well behaved. Tbe objections to tbe remarks, of tbe court in ordering tbe witness arrested and with regard to setting aside bis naturalization papers are overruled. He is ordered arrested for tbe crime of fornication, and :the clerk is instructed not to give him bis citizenship papers.”

'The jury were instructed to disregard this arrest and tbe withholding of tbe naturalization papers in weighing tbe evidence. While tbe district attorney might have chosen a more appropriate time and place for tbe arrest of tbe witness on bis own confession, a witness who takes tbe stand and flaunts bis own-crime brazenly in tbe face of tbe public, tbe court, and tbe jury is sometimes made an example of in this way. Tbe writer has known this to be done several times at tbe circuit. Logically considered, tbe arrest of tbe witness, if tbe jury believed that tbe arrest was right, would tend to- tbe exculpation rather than tbe incrimination of tbe defendant in tbe bastardy case, for tbe court charged tbe jury on this subject as follows:

> “The evidence of tbe defendant tends to show that tbe witness Erick Erickson also bad sexual intercourse with said Eva Sahanen during tbe months of March and April, 1905. *457If you believe said evidence, and that another man than *Johnson*had sexual intercourse with the said complaining witness, Eva Sahanen, during the months of March and April, 1905, then you will find the defendant *Thomas Johnson*not guilty. The fact that the said Erickson was arrested for the crime of fornication and that his citizen papers were withheld should not prejudice you in this case, for you will disregard both facts in weighing the evidence.”

This is not like the arrest of a witness for perjury committed while on the stand. The latter assumes that his testimony is false, while the former assumes that his testimony is true. But under the foregoing circumstances, where proper instructions were given to the jury, we must decline to hold this assignment of error good. Secs. 4659, 4706, Stats. (1898).

The 'fifth and sixth assignments of error are argued together and are to the effect that the court erred in not discharging the defendant when the state closed its case in chief .and also when the testimony was closed. The bill of exceptions is not certified to contain all the evidence. It is argued that this certification of the bill of exceptions is approved in 2 Winslow’s Forms, Ho. 1994, p. 1211, and note 10, but •counsel has not read this form aright. Looking into the evidence, however, we find that the complaining witness contradicted the evidence given by Erickson, and that there is in the record evidence sufficient to go to the jury, and, if the jury believed it, to support a verdict against the defendant.

The seventh and eighth assignments of error contain nothing not covered by the previous rulings except that under the name of “newly-discovered evidence” counsel for defendant produced the record of the conviction of Erick Erickson on June 22, 1906, for the'offense of fornication with the •complaining witness alleged to have taken place on March '31, 1905. It is claimed that this conclusively established the latter fact, and therefore no jury could determine who was the father of the child, even if they were to believe the tes*458timony of the complaining witness. This argument proceeds on'a misconception of the effect of the judgment of conviction as evidence. Without going to the length of *State v. Beverly,*88 N. C. 632, or passing upon the consideration that the parties to the prosecution for fornication and the parties to the prosecution for bastardy are not the same, it is sufficient to say that the issues in the several prosecutions were different, and the affirmative determination of one does not necessarily negative the other. The court recognizes that upon the trial of a bastardy case un-contradicted evidence of sexual intercourse at the critical time with some person other than the accused must raise a reasonable doubt with reference to the paternity of the child; but this is a rule going only to the weight of evidence necessary to uphold a conviction in criminal or gtiasi-criminal cases. It does not at all conflict with the rules of evidence relating to the admissibility and conclusive effect of judgments as evidence. Nor does it render either admissible or conclusive any judgment that does not logically and absolutely either affirm or deny, in whole or in part, the judgment sought for or rendered in the case in which such evidence is offered.

*By the Court.*— The judgment of the circuit court is affirmed.