The judgment in this case must be reversed on the evidence.
The testimony of Anna E. Swagger, the prosecutrix, is positive that her last menstruation was the first of September; that she had sexual intercourse with the defendant about two weeks thereafter, and with one C. Greenalsh about two weeks after that; that her child was born the 2ñth of May; and that the defendant is its father.
In such cases the paternity of the child is the main and material fact to be found by the jury (Speiger v. The State, 32 Wis., 400), and this fact the jury must find beyond a reasonable doubt. Zweifel v. The State, 27 Wis., 396. Whatever the probabilities may be, from this evidence, that pregnancy resulted from the first act of sexual intercourse, which was with the defendant, because of its being the nearest the termination -of the period of menstruation, and of the longer time before the birth of the child, yet they are mere proTodbilities, and, by the best medical authorities, very questionable, and by no means without reasonable doubt. 2 Wharton & Stille, §§ 43, 44, 45 and 46, and cases cited.
The prosecutrix having had sexual connection with two persons within so short a time, it was impossible for her to testify which act produced pregnancy, and which person is the father of the child. Commonwealth v. McCarthy, 2 Pa. Law J., 351; Commonwealth v. Fritz, 4 Pa. Law J., 219.
In view of these undisputed facts, and of the most creditable authorities, the jury could not have found the defendant guilty beyond a reasonable doubt. Physiological speculations, natural probabilities, or merely probable cause, are quite in-sufBcient upon the trial to establish the fact of paternity in such a case. There must be, from the very nature of such evidence, great, and certainly very reasonable, doubt as to this main fact. It is urged that if this is to be the rule, a conviction can never be obtained when more than one person has had sexual intercourse with the complainant about the same time. *113This consequence of the rule is far less important and serious than the wrong and injustice of a conviction upon insufficient evidence.
In such a case, the question is not whether the defendant is guilty of having had illicit intercourse with the complainant, but whether, hy such intercourse, the child was begotten; and this fact must be found beyond a reasonable doubt. This being the true legal rule, the consequence of its strict observance by courts and juries is not to be considered, except in changing or abolishing the rule itself; but while the rule exists, the consequences will not be presumed to be wrong or mischievous, but rather right and just.
By the Court. — The judgment of the circuit courtis reversed, and the cause remanded for a new trial.
Taylob J., dissents.