State ex rel. Dewey v. Kibbe ( 1925 )

Eschweiler, J.

(dissenting). Under the facts in this case, the complainant testifying to but one occasion, identifying the date absolutely, and the defendant meeting the testimony thus squarely presented by testimony which would amply warrant a verdict in his favor, I feel that the charge permitted, if not invited, the jury to speculate rather than to determine. Menn v. State, 132 Wis. 61, 112 N. W. 38. There was no “on or about” the designated date, or any admission of intercourse at other times, as in People v. Swanson, 217 Mich. 103, 185 N. W. 844. It well might also indirectly, but none the less effectually, tend to disparage the defense of alibi so recently discussed in Roen v. State, 182 Wis. 515, 196 N. W. 825.

Therefore I think the trial court was justified in granting a new trial.