State ex rel Sommerfield v. Stilwell

• Decision Date: 30 August 1922
• Docket Number: 5060
• Citation: 189 N.W. 697,45 S.D. 606
• Parties: STATE OF SOUTH DAKOTA ex rel EMMA SOMMERFIELD, Plaintiff and respondent, v. ARLO STILWELL, Defendant and Appellant.
• Court: South Dakota Supreme Court

45 S.D. 606

189 N.W. 697

STATE OF SOUTH DAKOTA ex rel EMMA SOMMERFIELD, Plaintiff and respondent,

v.

ARLO STILWELL, Defendant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Spink County, SD Hon. Alva E. Taylor, Judge #5060--Affirmed Sterling, Clark & Grigsby Attorneys for Appellant. H. B. Warnock, State's Attorney W. H. Beckman Attorneys for Respondent. Opinion filed August 30, 1922

POLLEY, J.

This appeal grows out of a proceeding in bastardy. The prosecutrix was delivered of a child on the 2d day of April, 1920. As soon there after as she was able to be about she filed a complaint against the appellant, charging him with being the father of the child. By some oversight in preparing the complaint the act of intercourse that resulted in the birth of the child was alleged to have taken place on the 4th day of July, 1920, three months after the child was born. That the child in question was born to the prosecutrix on or about the time alleged in the complaint is not disputed, and the proof showed that the act of intercourse took place on the 4th day of July, 1919, one year prior to the date alleged in the complaint. It is contended by appellant that this constitutes a variance between the pleading and the proof, and that it was error to admit evidence of an act of intercourse on the 4th day of July, 1919.

Some 15 assignments of error and many pages of the printed record are devoted to this one question. It is not shown that appellant was in any wise prejudiced by such variance. It, is not even claimed that he was prejudiced nor misled thereby, nor prevented from having a fair trial. The allegation itself was wholly unnecessary. It is not required by the statute, which prescribes what shall be charged in the complaint, and an allegation that a child was born on or about a particular day is sufficient to admit evidence that an act of sexual intercourse took place about the length of the period of gestation prior to such birth. In fact the question of variance as presented by this record is so utterly without merit that we deem it an imposition on the court to compel us to wade through this whole record for fear that something of merit might escape our notice. See, also, State v. Papernak, 181 N.W. 955.

The court in the course of its instructions to the jury said:

"No criminal penalties such as fine or imprisonment attaches in the event the defendant is found to be the father of the child, the...