Gatzemeyer v. Peterson
| Decision Date | 30 April 1903 |
| Docket Number | 12,778 |
| Citation | 94 N.W. 974,68 Neb. 832 |
| Parties | GEORGE GATZEMEYER v. DOVEY PETERSON |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cuming county: GUY T. GRAVES DISTRICT JUDGE. Affirmed.
Affirmed.
Ira Thomas and W. W. Sinclair, for plaintiff in error.
O. C Anderson and Harry F. Keefe, contra.
POUND C. BARNES and OLDHAM, CC., concur.
Although the numerous points urged upon our attention present nothing which has not been passed upon in this court more than once in like cases, the diligence and ingenuity of counsel in endeavoring to give some of them new phases, or put them in new lights, require us to pass upon them in some detail. The points going to the merits relate to the constitutionality of the bastardy law, under which this proceeding is prosecuted, and the sufficiency of the evidence to support the verdict. Every possible objection to the constitutionality of the statute has been presented in prior cases. Ex parte Donahoe, 24 Neb. 66, 38 N.W. 28; Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382. See, also, In re Walker, 61 Neb. 803, 86 N.W. 510. Moreover, the construction of the statute upon which counsel base their argument in large part was rejected in State v. McBride, 64 Neb. 547, 90 N.W. 209. As to the sufficiency of the evidence, we need only say that to our minds the verdict is not only supported by the evidence, but is clearly right. Bearing in mind that the defendant did not see fit to testify, which is a matter proper to be considered in such cases (Ingram v. State, 24 Neb. 33, 37 N.W. 943), we do not see how any other conclusion could have been reached.
Most of the other errors assigned, have to do with matters of procedure and rulings at the trial. At the opening of the term of court the defendant moved for a continuance in order to enable him to procure the testimony of a witness. It appears that he had made an attempt to secure the deposition of this witness and had not succeeded, owing to failure of the witness to attend at a time and place agreed on for that purpose. Defendant testified that he was informed the witness had left for some temporary purpose, and that his exact whereabouts could not be learned. The motion was overruled on September 12, and the cause was thereupon passed to the foot of the docket, and not called for trial until September 24. If the absence was temporary only, this postponement ought to have enabled the defendant to locate the witness and take his deposition, since he was known to be somewhere in a particular portion of a neighboring state. If he could not be reached in that time, there was very little likelihood that his testimony could be had at all in any reasonable time, and the affidavit filed shows no reason for thinking the contrary. Under such circumstances, it was not error to deny the continuance. McClelland v. Scroggin, 48 Neb. 141, 66 N.W. 1123.
Several rulings upon the admission of evidence are complained of. The prosecutrix testified, and it was not denied, that she and the defendant were engaged to be married. It appears from her testimony and that of other witnesses that, except while the defendant was away at school, he had been calling upon her taking her out riding, and going with her to dances and other entertainments, with more or less regularity during two years. Her relations with him for some four months of this period are testified to positively, circumstantially and repeatedly by the prosecutrix, and not denied by the defendant. The latter, relying on the expert evidence of a physician as to the probable date of conception, attempted to show an alibi as to certain particular occasions, without taking the stand himself. It is admitted, substantially, that the statements of the prosecutrix are true, except as to these particular occasions. On cross-examination she was asked if she was not "keeping company" with another man also at that time. We can not say that the court committed prejudicial error in excluding this and like questions. The defendant was allowed to show fully all the facts as to her conduct with other men, and seems to have established everything that was to be shown. So long as the existence of improper relations between the prosecutrix and defendant is clearly established, and the evidence as to her conduct with others goes no further than to suggest some possible grounds for suspicion, we do not think the case comes within the facts of Burris v. Court, 34 Neb. 187, 51 N.W. 745. There the trial court excluded evidence of other witnesses tending strongly to show...
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