## Facts

- Thomas James Whitty was charged in Milwaukee County with indecent behavior with a child under sixteen.
- On May 22, 1965, Whitty approached a ten-year-old girl in a Milwaukee alley and used a false “lost black and white rabbit” story to persuade her to accompany him.
- The child followed Whitty into a nearby basement, where he took indecent liberties with her.
- The homeowner investigated a basement noise, found the child seeking help, and discovered Whitty hiding; Whitty escaped during a scuffle while brandishing a ball-peen hammer.
- Whitty was arrested two days later.
- At his first court appearance, bail was set at $10,000 and a preliminary examination was scheduled; at the scheduled examination, bail was reduced to $1,500 in exchange for Whitty’s waiver of the preliminary examination.
- At trial, Whitty testified and denied being in the alley the prior night.
- The State cross-examined Whitty about a similar prior-night incident in the same alley involving another young girl and the same “lost rabbit” ruse; Whitty denied it.
- The State then called the other girl, who testified Whitty used the same ruse with her the night before the charged offense.
- The trial court admitted the prior-incident testimony for a limited purpose and instructed the jury not to use it as proof of guilt of the charged offense.

## Issues

1. Whether conditioning a reduction of bail on waiver of a preliminary examination violated the right to reasonable bail and due process, and, if so, whether it required reversal of the conviction.
2. Whether testimony about a similar prior incident with another child was admissible for a non-propensity purpose (such as identification/presence) and, if erroneously admitted, whether it required a new trial.
3. Whether alleged errors warranted a new trial, including in the interest of justice.
4. Whether the order committing Whitty for specialized sex-deviate treatment was valid.

## Decision

- The conviction was affirmed.
- Conditioning reduced bail on waiver of a preliminary examination was condemned as improper, but the error was held harmless because no reasonable possibility of prejudice to guilt or innocence was shown.
- The prior-incident “rabbit story” evidence was properly admitted for limited purposes such as identification and rebuttal of Whitty’s denials, and the limiting instructions were deemed adequate.
- A new trial was denied, including under the interest-of-justice standard.
- The sex-deviate treatment commitment order was reversed and remanded for further proceedings.

## Legal Principles

- Excessive bail is prohibited by the Wisconsin Constitution and the Eighth Amendment; courts should not condition reasonable bail on waiver of procedural protections such as a preliminary examination.
- Improper bail practices and loss of a preliminary examination are reviewed for harmless error; reversal requires a reasonable possibility of prejudice affecting the trial’s outcome.
- Evidence of other acts may be admissible when offered for a material, non-character purpose (including identity, presence, intent, or a distinctive method) and when its probative value is not substantially outweighed by unfair prejudice.
- When other-acts evidence is admitted for a limited purpose, the jury must be instructed on the restricted use to reduce the risk of propensity reasoning.

## Conclusion

The Wisconsin Supreme Court affirmed Whitty’s conviction, holding that improper conditioning of bail on waiver of a preliminary examination did not warrant reversal absent demonstrated prejudice, and that closely similar prior-incident evidence could be admitted for identification-related purposes when accompanied by clear limiting instructions; the separate sex-deviate commitment order was set aside and remanded.


Whitty v. State, 149 N.W.2d 557 (Wis. 1967)