Whitty v. State

149 N.W.2d 557 (Wis. 1967)

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Nature of the Case

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Facts

D approached a group of children playing in an alley. D asked the complaining witness, a girl of ten years if she would help him find a black and white rabbit which he had lost. The little girl removed her roller skates and followed D down the alley, through a yard and into the basement of a house in search of the rabbit. D took indecent liberties with the child. The owner of the house, Robert Lutz, became aware of a noise in his basement, investigated and found the little girl who warned him of D's presence and asked for his help. Lutz discovered Whitty behind a furnace, scuffled with him and knocked him down several times. D escaped up the stairs by swinging a ball-peen hammer at Lutz. D escaped. Two days later, D was arrested. At trial on cross, P alleged that D had lured another girl in the same alley using the same fake rabbit story the night before. D denied that he was in the alley the night before. P then called the little girl from the previous night to testify. The trial court allowed the testimony and instructed the jury that the testimony was only for the purpose of identification because D had denied being in the alley the night before. D was convicted and appealed.