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STATE v. SCHMIT

No. 82-1489-CR.

115 Wis.2d 657 (1983)

340 N.W.2d 752

STATE of Wisconsin, Plaintiff-Appellant, v. Jane A. SCHMIT, Defendant-Respondent.

Court of Appeals of Wisconsin.

Decided October 26, 1983.

Attorney(s) appearing for the Case

For the plaintiff-appellant there were briefs by Kathleen M. Arthur, district attorney, of Juneau, and oral argument by Kathleen M. Arthur.

For the defendant-respondent there was a brief by Alan D. Eisenberg, S.C. of Milwaukee and oral argument by Douglas Bihler of Milwaukee.

Before Gartzke, P.J., Bablitch, J. and Dykman, J.

BABLITCH, J.

The state appeals from an order dismissing a criminal complaint against the defendant for one count of misconduct in public office contrary to sec. 946.12(2), Stats. This crime is punishable as a Class E felony. The issue is whether an act of consensual sexual intercourse between a prison guard and a prisoner, occurring when the guard is on duty, is punishable as an act done and forbidden to be done in the guard's "official capacity" within the meaning...

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