Splinter v. State, 140 Wis. 567.

state, moved that he be discharged for lack of evidence to show that a crime had been committed. The motion was denied and defendant excepted to the ruling of the court. The defendant was found guilty, and thereafter he made a general motion in arrest of judgment, in which no specific grounds for arresting the judgment were set forth. The motion was denied and exception was taken to such ruling. From the judgment of conviction defendant prosecutes this writ of error.

The following errors are assigned: (1) Refusal to discharge because no offense was stated in the complaint; (2) failure to discharge for want of evidence showing guilt on the part of the defendant; (3) because the verdict is contrary to the evidence and contrary to law.

For the plaintiff in error there was a brief by Schwefel & Knoell, and oral argument by Adolph Schwefel.

For the defendant in error there was a brief by August C. Backus, district attorney, and Norman L. Baker, assistant district attorney, and the Attorney General, of counsel, and oral argument by Mr. Baker.

BARNES, J. Sec. 4607, Stats. (Supp. 1906; Laws of 1905, ch. 138), makes it a misdemeanor for any person to sell, offer to sell, or have in his possession for the purpose of sale, any adulterated milk. Sec. 4607a provides that in all prosecutions under the preceding section the term "adulterated milk" shall mean milk containing less than three per centum of milk fat. The section further provides that nothing in the act shall be construed as prohibiting the sale of milk commonly known as "skimmed milk," when the same is sold as and for "skimmed milk."

The defendant contends that the complaint is faulty because it does not allege that the milk in question was not kept and offered for sale as skimmed milk, and that the proof submitted by the state was insufficient to sustain a conviction. because it failed to establish the same fact. The sufficiency

Splinter v. State, 140 Wis. 567.

of the complaint is not raised by any exception. The sufficiency of the evidence is raised by an exception to the refusal of the court to discharge the defendant after the state had rested its case. The proviso in regard to the sale of skimmed milk is not found in sec. 4607, which makes it an offense to sell adulterated milk, but is found in the following section. The rule is quite general that where an exception is in a separate section of the statute, or in a proviso which is distinct from the enacting clause, it is a matter of defense which the prosecution need not anticipate or notice. Metzker v. People, 14 Ill. 101; Sokel v. People, 212 Ill. 238, 72 N. E. 382; Alexander v. State, 48 Ind. 394; Russell v. State, 50 Ind. 174; State v. Williams, 20 Iowa, 98; State v. Van Vliet, 92 Iowa, 476, 61 N. W. 241; State v. Gurney, 37 Me. 149; State v. Boyington, 56 Me. 512; Comm. v. Hart, 11 Cush. 130; People v. Phippin, 70 Mich. 6, 37 N. W. 888; Kline v. State, 44 Miss. 317; State v. McGlynn, 34 N. H. 422; State v. Cassady, 52 N. H. 500; Mayer v. State, 63 N. J. Law, 35, 42 Atl. 772; State v. Price, 71 N. J. Law, 249, 58 Atl. 1015; Comm. v. Shelly, 2 Kulp (Pa.) 300; Villines v. State, 96 Tenn. 141, 33 S. W. 922; Bell v. State, 104 Ala. 79, 15 South. 557; State v. Railroad Co. 54 Ark. 546, 16 S. W. 567; State v. Thompson, 2 Kan. 432; Comm. v. Benge, 13 Ky. Law Rep. 591; Barber v. State, 50 Md. 161; State v. Cox, 32 Mo. 566; State v. Harris, 119 N. C. 811, 26 S. E. 148.

Such rule was adopted in this state in Byrne v. State, 12 Wis. 519. The modification of this rule adopted by some courts is that it is necessary to negative an exception or proviso not contained in the enacting clause of a statute where it constitutes an element of the description of the offense. U. S. v. Cook, 17 Wall. 168, 173, and cases cited in 22 Cyc. 346. There is no difficulty about stating an offense under sec. 4607, Stats. (Supp. 1906; Laws of 1905, ch. 138), without negativing the proviso contained in sec. 4607a. Under a statute prohibiting the sale of liquors to Alaska Indians except

Donovan v. State, 140 Wis. 570.

"for medicinal, mechanical, or scientific purposes," it was held not necessary to negative the exceptions, because they constituted no essential part of the definition of the offense. Shelp v. U. S. 81 Fed. 694, 26 C. C. A. 570. The following cases also hold that it is unnecessary to negative such a proviso as the one under consideration: State v. Kendig, 133 Iowa, 164, 110 N. W. 463; State v. Weller, 171 Ind. 53, 85 N. E. 761; Hale v. State, 58 Ohio St. 676, 51 N. E. 154; State v. Heffernan, 28 R. I. 477, 68 Atl. 364; Mayer v. State, 64 N. J. Law, 323, 45 Atl. 624.

Otherwise we deem the proof sufficient to sustain a conviction. Six of the seventeen cans examined were below the legal standard. Taking the average test of the entire lot it was a trifle above such standard. But the statute makes it an offense for any person to have in his possession with intent to sell or offer for sale "any adulterated milk.” Manifestly, six separate cans containing forty-eight gallons of milk fell within the condemnation of the statute, unless they contained skimmed milk which was kept for sale and sold as such. Instead of showing that the milk in question was kept for sale and sold as skimmed milk, the evidence of the defendant showed quite conclusively that it was not. By the Court.-Judgment affirmed.

DONOVAN, Plaintiff in error, vs. THE STATE, Defendant in

error.

October 9-October 26, 1909.

Rape: Evidence: Corroboration.

A conviction of rape cannot be sustained upon the uncorroborated testimony of a prosecuting witness whose story is intrinsically improbable and almost incredible, especially if she is a person of feeble mind.

Donovan v. State, 140 Wis. 570.

ERROR to review a judgment of the circuit court for Jefferson county: GEORGE GRIMM, Circuit Judge. Reversed.

For the plaintiff in error there was a brief by Gustav Buchheit, attorney, and Kronshage, McGovern, Goff, Fritz & Hannan, of counsel, and oral argument by Mr. Buchheit and Mr. F. E. McGovern.

For the defendant in error there was a brief by the Attorney General, R. W. Lueck, district attorney, and F. T. Tucker, assistant attorney general, and oral argument by Mr.

Lueck.

WINSLOW, C. J. It is not believed that any good purpose would be served by a recital of the testimony in this case. The plaintiff in error was convicted of rape. The crime was charged to have been committed June 1, 1906, upon the person of one Elsie Weichert, who was then under fourteen years of age and was adjudged a feeble-minded person before the trial. The conviction was based upon the uncorroborated testimony of the prosecuting witness alone, and her story was intrinsically improbable and almost incredible. Under these circumstances the conviction cannot be sustained. The rule in such cases is that "where the evidence of the prosecuting witness bears upon its face evidence of unreliability, to sustain a conviction there should be corroboration by other evidence as to the principal facts relied on to constitute the crime." O'Boyle v. State, 100 Wis. 296, 75 N. W. 989; Hofer v. State, 130 Wis. 576, 110 N. W. 391. Especially must this rule be held applicable in a case where the prosecuting witness is a person of feeble mind.

By the Court.-Judgment reversed, and action remanded for a new trial.

Sanborn v. Carpenter, 140 Wis. 572.

IN RE CARPENTER: SANBORN, Appellant, vs. CARPENTER, Respondent.

October 5-November 12, 1909.

Incompetent persons: Guardians: Refusal to appoint: Who may appeal: "Person aggrieved."

1. Under sec. 3976, Stats. (1898), any relative or friend of a person alleged to be mentally incompetent may institute a proceeding in the county court for appointment of a guardian, but under sec. 4031, besides certain specified official persons, only a "person aggrieved" by the determination of the court can appeal therefrom.

2. No person is "aggrieved," within the meaning of said sec. 4031, unless the determination affects adversely his legal rights; mere affront to desire or sentimental interest being insufficient. 3. Next of kin or heirs apparent have no legal rights or interest in the property of a living relative.

4. Refusal to appoint, upon the petition of nonresident adult sister, a guardian for an alleged incompetent adult residing in this state, did not affect any legal rights of the petitioner, she having no legal right to control the custody or conduct of the alleged incompetent, no legal right to support from, or legal duty of care or support to, the latter, and no legal rights in or to the property of the latter.

APPEAL from a judgment of the circuit court for Milwaukee county: J. C. LUDWIG, Circuit Judge. Appeal dismissed.

The appellant, Eliza E. Sanborn, a nonresident of this state, but a sister of the alleged incompetent, who together with another sister and a brother are the next of kin, applied to the county court for the appointment of a guardian to conserve the property of Sarah A. Carpenter, alleging her incompetence. The county court decided in favor of the application, which decision, on appeal to the circuit court, was reversed and cause remanded, whereupon the county court entered its order denying the petition, from which order this appellant appealed to the circuit court, where, no evidence being offered in support of the petition, judgment was entered