
    State ex rel. Volkman, Plaintiff in error, vs. Waltermath, Defendant in error.
    
      February 25
    
    March 14, 1916.
    
    
      Bastardy: Not a criminal prosecution: Sealed verdict may be changed.
    
    
      1. A bastardy action is not a criminal prosecution, but a statutory proceeding to enforce a civil obligation or duty, the procedure being, however, criminal in form.
    2. In a bastardy action, as in other actions to enforce civil liability, if the sealed verdict is defective or if the jury on polling refuse to affirm it, they may be sent out again for further deliberation, and a fuller or different verdict afterwards returned will be good.
    Eeeoe to review'a judgment of the civil court of Milwaukee county: Michael F. Blewski, Judge.
    
      Reversed.
    
    The facts are these: A jury in a bastardy action were instructed by the court that if they agreed they might seal their verdict and separate. They did so and came into court on the following morning, and, after delivery of a sealed verdict ef “not guilty” and reading thereof by the clerk, were polled on demand of the plaintiff, whereupon one of the jurors answered that it was not his verdict, and they were sent back for further deliberation. Being unable to agree they were subsequently discharged and a new trial ordered. Some weeks afterwards, on defendant’s motion, the order granting a new trial was vacated, the action dismissed, and the defendant discharged on the ground that he had been acquitted by the sealed verdict. To reverse this judgment this writ of error is prosecuted.
    For the plaintiff in error there was a brief by the Attorney General, Winfred G. Zabel, district attorney, and Louis D. Koenig, assistant district attorney, and oral argument by Mr. Koenig and Mr. Daniel W. Sullivan.
    
    For the defendant in error there was a brief by Paul 0. Dusting, and oral argument by B. J. Dusting.
    
   Winslow, O. J.

In this case it is held:

1. A bastardy action is not a criminal prosecution, but a statutory proceeding to enforce a civil obligation or duty, the procedure being, however, criminal in form. Baker v. State, 65 Wis. 50, 26 N. W. 167; Barry v. Niessen, 114 Wis. 256, 90 N. W. 166; Smith v. State, 146 Wis. 111, 130 N. W. 894.

2. While in a criminal prosecution a sealed verdict cannot be amended or changed after the Jury have separated (Koch v. State, 126 Wis. 470, 106 N. W. 531), the better rule and the weight of authority is to the effect that, in an action to enforce civil liability, if the sealed verdict is defective or if the jury on polling refuse to affirm it, they may be sent out again for further deliberation, and that a fuller or different verdict afterward returned will be good. Comm. v. Tobin, 125 Mass. 203; Root v. Sherwood, 6 Johns. 68; Steele v. Etheridge, 15 Minn. 501; Rigg v. Bias, 44 Kan. 148, 24 Pac. 56; Proffatt, Jury Trial, § 460; 38 Cyc. 1874.

By the Court. — Judgment reversed, and action remanded for a new trial and further proceedings according to law.  