State ex rel. Burghart v. Haslebacher

• Decision Date: 01 May 1928
• Citation: 266 P. 900,125 Or. 389
• Parties: STATE EX REL. BURGHART v. HASLE-BACHER. [*]
• Court: Oregon Supreme Court

266 P. 900

125 Or. 389

STATE EX REL. BURGHART v. HASLE-BACHER. ^[*]

Supreme Court of Oregon

May 1, 1928

Department No. 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Filiation proceeding by State, on the relation of Frances Burghart against Edward Haslebacher. From an adverse judgment defendant appeals. Affirmed.

This is a filiation proceeding brought under section 2550, Or. L., on the relation of Frances Burghart, an unmarried woman charging the defendant with being the father of an illegitimate child borne by her on the 4th day of June, 1926.

The complaint was filed June 22, 1926, and the defendant entered a plea of not guilty, and, after a hearing before the justice court, was held to answer in the circuit court for Marion county. The case was tried before a jury, which returned a verdict of guilty against said defendant; upon which verdict the defendant was adjudged to pay to the complainant for the use and benefit of said child the sum of $250 per annum following the 4th day of June, 1928, and thereafter the sum of $300 per annum for each and every year during the life of said child until it should attain the age of 14 years. It is unnecessary to state further particulars of said judgment which follows the law in all respects. From this judgment defendant appeals.

W. C Winslow, of Salem (C. A. Swope, of Salem, on the brief), for appellant.

Guy O Smith, of Salem (John H. Carson, Dist. Atty., Lyle J. Page, Deputy Dist. Atty., both of Salem, on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

Since the opinion of this court in the case of State v. Newman, 109 Or. 61, 218 P. 936, it is definitely settled in this state that a proceeding of the character of the case at bar is in the nature of a civil action, and, in discussing the quantum of evidence necessary to justify a verdict, we shall so treat it.

The complaint in this case charges that the first sexual intercourse between the parties took place on the 4th day of August, 1925, but the defendant testified that in fact the date was September 6, 1925, and that the date August 4th was a mistake. Such a mistake in dates is not unnatural or uncommon, and is only of importance as to its relation with the period of gestation.

It may be well to say in the outset that, as this is not an action for seduction, it is not necessary that the complainant should as a preliminary matter prove previous chaste character, or that the act was procured under a promise of marriage, although we are of the opinion that both these facts are abundantly shown in an incidental manner by the testimony. The main question here is not the character of the woman, but the fatherhood of the child. Evidence of her character or habits is only of value as they may tend to affect her veracity or the accuracy of her declarations as to the parentage of the child.

It would seem proper in this instance to consider first defendant's contention that there is no evidence to corroborate complainant's claim that defendant had sexual intercourse with her. In cases of this character actual ocular evidence, rem in re, is rarely or never attainable. The fact must be proved by circumstances. Otherwise prosecutions for adultery, seduction, and bastardy would almost universally fail.

In State v. Wells, 48 Iowa, 671, 672, which was a criminal action for seduction, and in which the circumstantial evidence against the defendant was very similar to that adduced in the case at bar, the court said:

"Counsel for appellant claim that there was no sufficient corroboration to justify the verdict. A careful examination of the evidence satisfies us that this objection is not well taken. It is abundantly shown, aside from the testimony of the complaining witnesses, that at the time of the alleged seduction the parties had entered into a marriage engagement. That such a relation existed is conceded. It further appears that she was delivered of a child at the usual time after the alleged intercourse, and that about the time the child was begotten the defendant was a constant visitor at her father's house, where she resided, and was frequently and at stated times alone with her far into the night. In addition to this, it does not appear that at that time she had any other male company. Taking into consideration all these circumstances, we are not prepared to say that the jury were not warranted in finding that corroboration was sufficient. The court, in its fifth instruction to the jury, called attention to these circumstances as proper corroboration, and in this we think there was no error."

And in the case of State v. Painter, 50 Iowa, 317, 319, which was also a criminal action for seduction, the court said:

"If there were a promise of marriage, the birth of a child, the defendant a constant visitor, etc., in addition to opportunity, it would be sufficient, as was held in State v. Wells, 48 Iowa, 671. The character of the offense is such that other corroborative evidence cannot well be obtained. From necessity it must, therefore, he held sufficient."

While both the above cases were criminal actions where courts are, if anything, stricter in enforcing the rules requiring corroboration than in civil cases of the character of the one at bar, the rules there enunciated are unquestionably applicable here.

The complainant, at the time the alleged sexual act occurred, was an ignorant country girl about 18 years of age. Her testimony, taken about 2 years later, indicates that she had never had many educational advantages, and is of barely average mentality. She is the child of foreign-born parents, who speak and understand English very imperfectly. She was raised in the country, had only been as far as the eighth grade in school, and may be fairly characterized as an ignorant, unsophisticated country girl. So far as it appears, defendant was her first and only beau. At the age above stated, she began working as a domestic in the vicinity of where her sister resided, and shortly after that made the acquaintance of the defendant. From 1923, up to and including a great part of 1925, he was her constant attendant, taking her to parties, shows, and functions of that character, visiting her at the home of her parents, writing her letters filled with love, kisses, and bad grammar, and generally conducting himself toward her as a most devoted lover. Like an affectionate sweetheart, she treasured and kept his letters. He says he destroyed hers, but, judging from the nature of his epistles, they were probably of an equally affectionate character. While the defendant now says that she occasionally "stepped out," as he terms it, with other men, he was unable to show any instance where she ever went with any other man anywhere, or to procure a witness who had ever known her to do so. She stated that in July, 1924, defendant asked her to be his wife, and she consented; that from time to time he kept putting off the wedding day on account of the fact, as he claimed, that he did not have money enough yet; that up to July or August of 1926, they discussed building a home; that, driving along, he would say:

"This is the home we are going to have isn't it?" and that she would say: "Sure it is." That they studied furniture, and discussed their wedding pictures, and that he made her presents, a wrist watch, and a string of pearls, both of which were exhibited at the trial. The evidence of relatives and associates indicate that they conducted themselves after the usual manner of engaged sweethearts. Relatives corroborated her testimony as to his frequent visits and endearments, and as to their discussing houses and furniture.

Complainant testified that defendant promised to buy her a ring as soon as he got the money, and her sister, with whom she was staying, testified that on one occasion he put his arm around complainant, and came up to the witness, and held up complainant's hand and said: "You watch her finger some time she is going to have something on there," and that he would take her around the neck and say: "Aren't we a nice couple, wouldn't she make a nice wife for me?" The complainant testified that about the middle of August, 1925, while the defendant was working on the threshing crew on the Haselburger place, she went with him about 9 o'clock in the evening to the place where the machine was standing, and where defendant's blankets, which he slept in, were situated; that she made up his pallet for him, and they both got under the covers, and were in that position when Joe Rentz, defendant's sleeping partner, and a man by the name of Martin, came up and found them in that position. Rentz was called as a witness, and absolutely corroborated this statement, and so did Martin. They were friends and associates and fellow workmen with defendant, and there is no room for doubting this testimony. Complainant testified that nothing sexual happened on that occasion, and we may well believe that the sudden and unexpected incursion of his fellow workmen may have frightened all amorous thoughts that defendant might theretofore have entertained entirely out of his system. But, conceding that nothing unlawful happened on that occasion, the circumstances show what a hold defendant had on the affections of this ignorant girl. There is another important aspect in which we view this testimony. The defendant absolutely denied being in bed with complainant, but says that she only was under the covers and that he was sitting by the side of the bed, and flatly contradicted the complainant and his own fellow workers, the two other disinterested witnesses. We do not believe his testimony, and, if he is false in this, it was the privilege of the jury to disbelieve other denials which he has made in...