
    Paladino, Plaintiff in error, vs. The State, Defendant in error.
    
      May 14
    
    October 20, 1925.
    
    
      Appeal: Reversal and new trial in interests and in furtherance of justice.
    
    While there are no errors in this case sufficient to require reversal, and it is not held that there is not sufficient evidence to sustain the verdict, upon the whole record it appears that in the interests and in furtherance of justice a new trial should be had.
    Error to review a judgment of the municipal court of the city of Beloit, Rock county: John B. Clark, Judge.
    
      Reversed.
    
    For the plaintiff in error there was a brief by Fiedler & Garrigan and T. R. Amlie of Beloit, and oral argument by E. C. Fiedler.
    
    For the defendant in error there was a brief by George S. Geffs, district attorney of Rock county, and oral argument by /. E. Messerschmidt, assistant attorney general.
   Rosenberry, J.

The information charges the plaintiff in error (hereinafter designated the defendant) with having on September 15, 1923, wilfully and feloniously assaulted and carnally known and abused Francisco Martinico, a female under the age of eighteen years, the defendant being a male person over the age of eighteen years.

Upon the trial the jury returned a verdict of guilty and the defendant was sentenced to a term of four years in the state prison. Thereupon the trial court granted a stay of execution. The case was removed to this court where it was argued at length. On behalf of the defendant it was contended that the evidence was insufficient to sustain conviction. This was argued under eleven heads. It was also urged that the court erred in admitting and rejecting evidence and in his instructions to the jury.

This case has had our very careful and thorough consideration. While there appear to be no errors sufficient to work a reversal of the judgment, the court is of the opinion that a new trial should be ordered in this case for the reason that it appears probable that justice has miscarried. Sec. 2405m, Stats. It is not held that there is not sufficient evidence to sustain a verdict. But upon the whole record this court is of the opinion that in the interests and in furtherance of justice there should be a new trial, and in view of that fact we purposely refrain from any comment upon the evidence. While the errors complained of are not sufficient to work a reversal under the rule, this being a very close and doubtful case, we are of the opinion that the defendant should have an opportunity of presenting the matter to another jury.

By the Court. — The judgment of the municipal court of the city of Beloit is reversed, and the cause is remanded for further proceedings according to law; the defendant to remain in the custody of the sheriff of Rock county unless admitted to bail or otherwise discharged by order of the court.  