State ex rel. McAlpin v. Gremmels
| Decision Date | 07 March 1924 |
| Docket Number | No. 5241.,5241. |
| Citation | 197 N.W. 682,47 S.D. 248 |
| Parties | STATE ex rel. McALPIN v. GREMMELS. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.
Bastardy proceedings by the State, on the relation of Edna Alice McAlpin, against Charles F. Gremmels. From a judgment and order denying new trial, defendant appeals. Judgment and order reversed.Kirby, Kirby & Kirby, of Sioux Falls, for appellant.
Danforth & Barron and Christopherson & Melquist, all of Sioux Falls, for respondent.
Respondent, Edna Alice McAlpin, gave birth to a bastard child on October 30, 1920. The jury found that the appellant was the father of such child after a plea of “not guilty.” On October 19, 1921, judgment was entered. From this judgment and the order denying a motion for a new trial, defendant appeals.
[1] Appellant asserts error in refusing to allow certain testimony, viz.: Q. Tell us what was done and said and what took place. After the court sustained the objection, appellant then offered to show by the witness that in October, 1918, while in the room with Mrs. McAlpin in the Arlington Hotel, she and another woman, both of whom had been drinking, grabbed hold of him and took off all his clothes and pushed him into bed between them. Objection sustained.
There was a sharp conflict in the evidence as to the paternity of the child. Chapter 50, Laws of 1899, contains a new amendment to the bastardy statute. We believe that this amendment has never been construed by this court, but it clearly becomes our duty to uphold this provision of the law and make it effective. Here there are no restrictions placed upon the scope of the testimony that may be admitted relative to the previous unchastity of the female, and, unless the evidence be so remote as to become immaterial, it would constitute material evidence in the case. The refusal of this evidence constituted a prejudicial error. Section 2983, R. C. 1919, provides:
[2] It will be noticed that previous unchastity is not a defense, but is competent evidence hearing on the paternity of the child.
[3] Appellant assigns error in refusing to permit questions asked on cross-examination of the relatrix as to living separate and apart from the husband during which time money was procured from one Baird for adulterous intercourse with relatrix and that thereafter and went back again to live with him. Also, in sustaining objections to questions asked relatrix on cross-examination relative to procuring a car from Mr. Baird in settlement of an action for seduction of the wife against him. The refusal to allow these questions to be answered on cross-examination constituted prejudicial error. The broadest latitude should be allowed the defendant to fully cross-examine the relatrix on these matters.
[4] The summons in the divorce action of Edna Alice McAlpin v. Jack W. McAlpin is dated February 7, 1919, and complaint is verified on the same day. It charges the relatrix with consorting with other men, and with infidelity. Appearance made by an attorney; stipulation filed, waiving notice of issue and trial, findings of fact, and conclusions of law. The case was heard, decree of divorce granted without any visible change of the domicile of either husband or wife. It appeared from the evidence that the respondent and her former husband had not come to an actual separation until May 15, 1920, at which time the relatrix sold out the Arlington Hotel and has not been engaged in any employment since.
Appellant contends that the court should have held the divorce proceedings to the collusive and void. We think the trial court committed no error in refusing to direct the state's attorney to institute an action to set aside the divorce proceedings. This court only be accomplished by a direct proceeding instituted for that purpose. Such attack would to collateral and, in addition, such refusal would be discretionary.
In McAlpin v. Baird, 40 S. D. 180, 166 N. W. 639, is shown an action on the part of the husband for the debauching of plaintiff's wife. An interesting chapter may also be found in McAlpin v. Gremmels, 44 S. D. 373, 184 N. W. 4, an action for her own seduction. The matters referred to strongly support the assertion made by appellant that the divorce was a collusive one.
The date of birth was October 30, 1920, and by counting backwards from the...
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State v. Gremmels
...47 S.D. 248197 N.W. 682 ... STATE OF SOUTH DAKOTA ex rel EDNA ALICE McALPIN, Plaintiff and respondent, v. CHARLES F. GREMMELS, Defendant and appellant. South Dakota Supreme Court ... ...