Porath vs. The State. ant: "Give the plaintiff such sum-I started to say such sum as would be a punishment, but I don't say it; I take it all back." The remark was improper, but the attention of the court does not seem to have been called to it in any way, nor was there any ruling upon it, nor request to make a ruling. Furthermore the damages recovered were very moderate, considering the serious nature of the plaintiff's injuries. Under these circumstances there is no error. Heucke v. Milwaukee City R. Co. 69 Wis. 401. By the Court.-Judgment affirmed. 90 527 PORATH, Plaintiff in error, vs. THE STATE, Defendant in error. May 23-June 20, 1895. 191 262 527 Criminal law and practice: Incest: Rape: Preliminary examination: 90 Pleading: Joinder of counts: Election: Evidence: Leading ques- 115 tions: Accomplice: Subsequent offenses: Instructions to jury. 1. The preliminary examination of a person charged with incest disclosed facts indicating that he had committed rape against the person of his daughter, and an information was filed accordingly, charging in one count the rape and adding thereto a count for incest founded on the same transaction. Held, that a plea in abatement of the first count on the ground that defendant had not had a preliminary examination for the offense charged therein, was properly overruled. Sec. 4653, S. & B. Ann. Stats. 2. A count for incest may be joined with one for rape founded on the same transaction. A remark to the contrary in State v. Shear, 51 Wis. 460, held obiter. 3. Where the joinder in such a case was intended merely to meet the different legal aspects which the evidence might give the case, the trial court rightly, in its discretion, refused to require an election between the counts. 4. The allowance of leading questions to the prosecutrix in this case is held not to have prejudiced the defendant so that it should work a reversal. 4327 Porath vs. The State. 5. Although the testimony of an accomplice is the only evidence against the accused, the trial court is not required to direct an acquittal, nor, in the absence of a request therefor, to give any instructions as to the effect of such testimony. 6. The fact that one accused of incest used a certain amount of force to overcome the resistance actually made will not enable him to escape punishment for incest, the parties being within the prescribed degree of consanguinity, if the force and resistance used were not sufficient to constitute rape. 7. If, in the commission of the incestuous act, the female was the victim of force, fraud, or undue influence, so that she did not act voluntarily and join in the commission of the act with the same intent that the accused did, she ought not to be regarded as an accomplice. In all such cases, where it is to be proved inferentially, the question of accompliceship is one of fact for the jury. 8. On a prosecution for incest, evidence was admitted tending to show improper relations between defendant and one of his witnesses subsequent to the offense charged. After stating that such evidence was admitted to show the relations of the witness to defendant, so as to throw light upon the credibility of her testimony, the court charged the jury to the effect that they should only consider it as it had a bearing on the question whether defendant was guilty of the offense charged. Held error, such evidence not being competent on that question. ERROR to review a judgment of the circuit court for Brown county: S. D. HASTINGS, JR., Circuit Judge. Reversed. The plaintiff in error was tried upon an information containing two counts: First, for rape committed upon his daughter Ida Porath, July 10, 1891; and the second for incest committed with her on the same date; they not being lawfully married to each other, and the defendant then having a lawful wife, Frederica Porath, still alive, and the said Ida being then and there the daughter of the said defendant and his said wife Frederica. The defendant pleaded in abatement of the first count that he had not had a preliminary examination for the offense charged in it, and had not waived the same; but the court, at the trial, overruled the plea; and, the defendant having pleaded not guilty to both counts, he moved that the district attorney be required to Porath vs. The State. elect on which count he would proceed to trial. The court denied the motion. The evidence on the plea in abatement showed an arrest and preliminary examination upon the charge of incest stated in the second count, and that the evidence then taken tended to show that the intercourse that had taken place with the prosecutrix was had by force and violence of the defendant, and against her will. At the trial, the prosecutrix, Ida Porath, testified, after some preliminary details, to the particular transaction in question, which she said took place in July, 1891, in the hay mow of the defendant's barn, where she was pitching hay; that her brother threw the hay up to her, and the defendant came to help her. She was at that time thirteen years old, and sixteen at the time of the trial; and the record shows that she answered mainly by monosyllables, "Yes" or "No," and in a low tone, and the repetition of questions would indicate with some hesitation. After stating that the defendant came to help her pitch the hay further back, she was asked: Q. What did he do then? Did he lay his hands on you at all? A. Yes. Q. Well, after he laid his hands on you, what did he do then? A. He was trying to throw me down. Q. Did he throw you down? A. Yes. Q. What did he do then? Did he disturb your clothing in any way? A. Yes. Q. What did he do with it? What did he do with it? Well, speak right up. what he did. District Attorney: That is what you are here for,- to tell what you know about it. A. He was going to pull up my clothes. Q. Well, did he pull up your clothes? A. Yes, sir. Q. What more did he do? Well, did he have sexual intercourse? (Objected to as leading. Objection overruled.) A. Yes, sir." She then testified that he told her he would kill her if she mentioned it; that she resisted him, pushed him back, and told him to stay back; that she cried out, and he held her with one arm around her and the other over her mouth; that she did all she could to prevent VOL. 90-34 The Court: Go on, and tell Porath vs. The State. him; and also testified to actual penetration; that they were alone until her mother came into the barn, and listened, and called: "Ernest Porath, have you not got any sense?" She testified that the defendant had had intercourse with her before, but not afterwards, and that she complained the next day after the transaction in the barn to her mother of it, and had told others about it; that she had a feeling against him, and wanted to get even with him; that she afterwards went away to Oconto with a young man named Keefort, and lived in a house there (not a bad house), because the defendant would not let her alone; that he had forbidden her going with Keefort; that while she lived in Oconto she went by the name of Ida Thompson; that she afterwards came back and lived with the defendant awhile, and after going away again she was arrested and confined in jail for two months for stealing; that she told the police officer and two of her brothers that she had been induced or instructed to make the complaint against the defendant, but that the charge was not true, and that the defendant had not had carnal intercourse with her; that she told the police officer so because he said, if she did not say so, she would be sent to the reform school; that the defendant was cruel to his children, and beat them with a stick, or kicked them, just as it came to his mind. "Q. They have been driven away from home by his beating them and threatening to kill them, have they not? Objected to as leading, etc. The Court: It shows why the girl should go away from home. Overruled. A. Yes, sir; he treated me in the same way; has beaten me with a club, and kicked me, prior to my leaving home." The court allowed the district attorney, against defendant's objections, to show that Bertha Baker made complaint against the prosecutrix for stealing; that Bertha had been living at defendant's after he had parted with his wife; that the charge against witness was for stealing aprons and Porath vs. The State. rings; that she did steal some of them, but not all that Bertha claimed, and she had gotten them all back again. Bertha Baker, on behalf of the defendant, testified that the prosecutrix told her, after the defendant's arrest on this charge, two or three times, that she made the charge against her father because she wanted to get some of his property; that she asked her if she had been to see her father, and she said, "No," and that she told her she would be sorry after awhile, and she told witness to "go to h-1;" that she told witness her father did not have anything to do with her; that her mother and the folks talked her up to make the charge. On cross-examination, this witness admitted that she was the mother of an illegitimate child by one of defendant's sons. She denied that she was living in adultery with the defendant, but did sleep in the same room with him, and the other children slept there, and he dressed and undressed in it; that she was not married to nor trying to marry him; that she had not held herself out to the public as Mrs. Porath; that she had written letters in which she had signed herself as Mrs. Porath; wrote one for fun, which she signed Bertha Porath. The letter was identified, and offered in evidence, and received, against defendant's objections, to show her relations to the defendant and her interest and bias as a witness. The letter stated the witness was married long ago, and contained indecent and grossly obscene statements. She denied that she had carnal intercourse with the defendant, and testified that she worked for him for wages, the same as any other girl. The police officer testified that the prosecutrix denied to him that the defendant had had sexual intercourse with her, and said that she had said so because he had not been using her well at home, and she got no clothes, and he had whipped her. Her brothers Otto and Frank both testified that she had said that the defendant had not had intercourse with her; that she had stated that he had because she could not |