State ex rel. Mochnick v. Andrioli
| Decision Date | 20 June 1933 |
| Docket Number | 41572 |
| Citation | 249 N.W. 379,216 Iowa 451 |
| Parties | STATE ex rel. ANGELNA MOCHNICK, Appellee, v. FRANK ANDRIOLI, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court--JOSEPH E. MEYER, Judge.
A proceeding under chapter 544-A1 of the 1931 Code, to determine the paternity of an illegitimate child. There was a verdict of guilty, and judgment entered thereon. The defendant appeals.
Affirmed.
Geo. J Dugan, and Walter F. Maley, for appellant.
Carl S Missildine, County Attorney, and Howard M. Hall, Assistant County Attorney, for appellee.
This is an action commenced and prosecuted under chapter 544-A1 of the 1931 Code (sections 12667-a1 to 12667-a54), charging the defendant-appellant, Frank Andrioli, with being the father of a child born to Angelna Mochnick. There was a trial in the district court of Polk county, the Hon. Joseph E. Meyer presiding, and the jury returned a verdict finding the defendant guilty. Thereupon the court entered judgment, and, as provided by law, established the defendant to be the father of the child, and providing that he should pay to Angelna Mochnick the sum of $ 10 on the first and fifteenth of each month until further order of the court; and that the defendant file bond with the clerk of court for the sum of $ 1,000, as provided by law. The defendant appeals.
The child was born August 1, 1931, and the defense was that the last act of intercourse between the defendant and Angelna occurred on August 15, 1930, and that the defendant was not, and could not have been, the father of the child. The complaining witness, Angelna, was an Austrian girl, twenty-one or twenty-two years of age. She had been in this country about three years when she began keeping company and associating with the defendant. The defendant admits that he commenced to have sexual intercourse with the complaining witness in May, 1930, and that such acts continued until August 15, 1930, when he ceased keeping company with Angelna. There is evidence in the record, however, from which the jury could have found that the acts of intercourse continued until the latter part of October, 1930. As to this fact, however, a sharp controversy exists, and the whole defense stands or falls upon the determination of this fact. The defense claims that all relations between the complaining witness and the defendant ceased on August 15, 1930, and some evidence was produced that thereafter she associated with other men, and the insinuation that some other man was the father of the child is injected into the case. The most that can be said for this line of evidence, if it can be taken as true, is that the girl was seen upon the streets of Des Moines with some other man on two or three occasions, and was seen at a club dance in Madrid, with a man other than the defendant. There is, however, no testimony in the record showing the disposition or inclination of the prosecuting witness to commit acts of intercourse with any other man than the defendant, and the testimony referred to can have but little probative force.
When the complainant was first called as a witness, she fixed the date of the birth of her child as August 1, 1931; and the date of the last intercourse with the defendant as August 15, 1930. After the close of the testimony on the part of the state, and after the making of a motion by the defendant for a directed verdict, the court permitted the state to open the case and recall the complaining witness. She then said she was confounded and mistaken in her former testimony, when she stated that the date of the last act of intercourse was August 15, 1930, and that the last act was in the latter part of October, 1930. Strenuous objections were interposed by the defendant to the act of the court in permitting the reopening of the case and the recalling of the complaining witness, and the defendant insists that the court committed an error in so doing; that the motion to direct a verdict should have been sustained; and that when the motion to direct a verdict was again made at the close of all the testimony, the court erred again in not sustaining it. The defendant contends that the testimony of the complaining witness, after she was recalled, was not a correction, but a change of her testimony; that it was a contradiction of her former testimony, inconsistent, self-contradictory, and, being such, it is an absolute nullity, and cites Graham v. Chicago & N.W. R. Co., 143 Iowa 604, 119 N.W. 708, 122 N.W. 573, and other cases as supporting this contention. The gist of the cited cases is to the effect that, where a fact as stated by a witness demonstrates the falsity of other testimony given by her, the court is not bound to give such testimony any probative effect.
The rule that it is for the jury to reconcile the conflicting testimony of a witness does not...
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