Weise v. Green Bay, 143 Wis. 198. cases inequality may result. Human foresight has not yet been able to devise legislation which always and under all circumstances operates with perfect justice. Again, it is urged that because the statute requires that a lotowner who exercises the option to have the assessments against his property spread over a term of years must agree that he will make no objection to any want of power or irregularity in the making of the assessment, and because the bond issued in pursuance of the option becomes conclusive evidence of the validity of the proceedings, the law is unreasonable and in effect takes property without due process of law.. In this connection Hayes v. Douglas Co. 92 Wis. 429, 65 N. W. 482, where a provision that the right of the property owner to contest such proceedings should be cut off at the end of thirty days after the assessment was made was held to be not due process of law, is relied on. The case is not applicable because under the law in question in that case the property owner had no choice. There was but one course of procedure authorized by the statute, and under this course the short limitation always applied. In the present case, however, the agreement to waive defenses is not required unless the property owner chooses to exercise the option offered him by which he can elect to have the assessments spread over a number of years. This option is a privilege given to him. which the legislature could extend or not, as they chose, and which, if extended, could, of course, be made subject to such conditions as legislative discretion approved. The property owner does not have to accept it, but, if he does, he accepts it with its limitations. As to the contention that sec. 959-35 was only intended. to apply to that class of cities which have special provisions in their charters exempting property which has once been assessed for construction of a pavement from any subsequent assessments, to which class Green Bay does not belong, we are quite well satisfied that it ought not to prevail. The Weise v. Green Bay, 143 Wis. 198. language of the section is not happy. It apparently assumes that there is an existing exemption which is to be controlled and curtailed thereby, but we cannot doubt that it was intended to apply to all cities to which the act applies. Any other construction would result in producing diversity by means of a law which was unquestionably intended to secure uniformity, and we therefore hold that the limit beyond which assessments cannot go was intended to apply to all cities covered by the law. Eight days after the passage of ch. 329 of the Laws of 1909, amending sec. 959-35, Stats. (1898), by changing the limit of aggregate assessments, another law was approved relating to the construction of pavements in all cities of the state, except cities of the first class, known as ch. 539 of the Laws of 1909, and the appellant claims that this act operated to repeal the limitation section under consideration. This law adds ten new sections to the statute numbered from 95930a to 959-30j. Careful study of the law demonstrates that its predominant purpose was to make it possible for cities to advertise for bids for different kinds of pavements in competition with each other, and thus remedy the difficulty which was held fatal to an assessment made under the charter of the city of Superior. Stocking v. Warren Bros. Co. 134 Wis. 235, 114 N. W. 789. In that case this court held that under the Superior charter, which is practically the same in its provisions as the general charter law, competition between two or more different kinds of pavements was not contemplated or permitted. It is true that this law contains general expressions which, in the absence of other statutes in pari materia, would indicate an intent that assessments for paving might be made to any amount against adjoining property, but when we consider the fact that only eight days previously the legislature had acted on the question of limitation of the aggregate amount of such assessments, and that they also declared in Robinson v. State, 143 Wis. 205. sec. 2 of the act now under consideration that "this act shall not be construed as repealing any provisions of the statutes, but shall constitute and prescribe a mode of making city improvements which any city may follow in any instance if the common council of such city shall so elect," we cannot doubt that they intended to leave the limitation in force, and that the provisions of the last-named act must be construed as subject to the existing limitation. By the Court.-Judgment affirmed. ROBINSON, Plaintiff in error, vs. THE STATE, Defendant in error. April 29-May 24, 1910. Criminal law: Competency of witnesses: Children: Discretion: Rape: Sufficiency of evidence: Unsworn testimony: Waiver of objection: Mental capacity: Opinions of nonexperts: Time of offense: Instructions to jury: Evidence as to character: Refutation: Proof of other immoral acts: Rebuttal. 1. Unless it appears to have been an abuse of discretion, the ruling of the trial court that a child of limited mentality and intelligence was competent to testify will not be held error. 2. A conviction of rape is held to be sustained by the direct and positive testimony of the prosecutrix, a child between thirteen and fourteen years old of limited intelligence, together with some corroboration, the question of her credibility being one for the jury. 3. Where a defendant expressly consents, even under pressure from the court, to the admission of unsworn testimony of young children, he waives any right to complain thereof. 4. A nonexpert witness cannot give a general opinion as to the mental capacity of a person, but may testify as to specific interviews and the impression left upon his mind as to the person's mental peculiarities exhibited in such interviews. 5. Where, on a trial for rape, the prosecutrix testified to only one offense and the testimony of the accused evinced no uncer Robinson v. State, 143 Wis. 205. tainty as to the occasion referred to, so that the jury in finding him guilty must have agreed upon the commission of one specific offense, there was no error in an instruction permitting conviction for an offense committed at any time within the period of limitation prior to the time charged in the information. 6. The privilege of general vilification of a witness by proof of disreputable conduct not connected with the facts on trial should be allowed only in the exercise of judicial discretion, and then only to affect the credibility of the witness, and not to be considered upon the question of guilt or innocence if the witness is also the accused person on trial. 7. Refutation of evidence of the general good character of an accused must be by proof of general reputation or character and not of specific acts. 8. Where, on a trial for rape, the accused himself testified and also offered other evidence to show the innocent and meritorious character of his relations and usual acts with girls other than the prosecutrix who frequented his place of business, it was permissible for the state to show that the conditions which he sought to prove as suggestive of his innocence did not exist, and to show that the presence of such girls on his premises, invited by him, was often immoral and libidinous instead of uniformly innocent and conventional as he had sought to prove. ERROR to review a judgment of the municipal court of Dane county: ANTHONY DONOVAN, Judge. Affirmed. Writ of error to review conviction for carnal intercourse with a female under fourteen. The prosecutrix was between thirteen and fourteen, of quite limited mentality and intelligence, and in whom the absence of chastity appeared by physical examination and by her own testimony. She asserted that the defendant, a man sixty-two years of age, keeping a petty shop for sale of candies, notions, and pictures, and an employment agency, enticed her therein, and, by promise of a trifling sum of money, induced her to consent to the carnal act. Hers was the only direct testimony thereto; but physical examination very shortly thereafter, testimony of a witness to her presence at the shop and retirement with defendant into a back room, and perhaps some other facts, are Robinson v. State, 143 Wis. 205. claimed as corroborative. Defendant introduced evidence of good character of himself and his place of business and appeared as a witness and testified to the respectable character of the business. On cross-examination he denied various specific indecent and improper acts with other girls of various ages and at different times coming to his store. The state upon rebuttal was allowed to introduce affirmative proof of these several acts. For the plaintiff in error there was a brief by Ollis & Nelson, and oral argument by R. N. Nelson. For the defendant in error there was a brief by the Attorney General and Vroman Mason, district attorney, and oral argument by Mr. Mason. DODGE, J. We have concluded, after doubt on some, that none of the assignments of error necessitate reversal, for reasons to be stated: 1. The competency of the accusing witness was fairly within the trial court's discretion, guided by his experience with her upon the preliminary examination, as also by her appearance. There is not enough in the record to convince us that such discretion was abused. 2. Her testimony being admissible, the verdict was not without support from evidence. That testimony is direct and positive to commission of the act charged, and apparently with understanding of that to which she testified. The question of her credibility, which doubtless is a serious one, was nevertheless for the jury, and she was not wholly without corroboration. 3. The admission of unsworn testimony, even from very young children, could hardly be justified but that defendant, albeit under considerable pressure from the court, yielded his express consent to omission of the oath, and has thereby waived all complaint thereof. Oborn v. State, post, p. 249, 126 N. W. 737. |