State v. Anderson

• Decision Date: 24 October 1929
• Docket Number: No. 5715.,5715.
• Parties: STATE v. ANDERSON.
• Court: North Dakota Supreme Court

58 N.D. 721

227 N.W. 220

STATE

v.ANDERSON.

No. 5715.

Supreme Court of North Dakota.

Oct. 24, 1929.

Syllabus by the Court.

In an action to determine the paternity of a child, it is competent to show, on the cross-examination of the defendant, that, after the defendant learned of the condition of the complaining witness, he transferred his property, as an admission by act tending to show a consciousness of liability.

Where there is a direct conflict on an issue of fact, a judgment on the verdict of the jury will be affirmed.

Appeal from District Court, Cavalier County; C. W. Buttz, Judge.

Action by the State against George Anderson to establish the paternity of a child. From an adverse judgment, and from an order denying his motion for a new trial, defendant appeals. Affirmed.Lemke & Weaver, of Fargo, for appellant.

J. M. Snowfield, of Langdon, for the State.

BURKE, C. J.

This is an action to establish the paternity of a child born to Emma Dahlvang, an unmarried woman, on the 26th day of March, 1928. The case was tried to a jury, and a verdict returned, finding the defendant, George Anderson, to be the father of said child, and from an order denying a motion for a new trial the defendant appeals.

[1] The defendant contends that the court erred in overruling objections to the following testimony of the defendant under cross-examination:

“Q. You disposed of all your property, didn't you?

Mr. Peterson: Objected to as incompetent and immaterial, and not within the issue. (Overruled.)

Q. Turned your property over to your brother?

Mr. Peterson: May I have an objection to all this line of testimony; it is improper cross-examination.

The Court: You may have it. Overruled.

Q. You turned it over to your brother? A. Yes.

Q. You did that, did you? A. Last summer, in May.

Q. But your bill of sale was not filed until Christmas? A. He told me to file it when he heard about this trouble. No; it wasn't filed until Christmas.”

It is the contention of the appellant that this testimony does not tend to prove or disprove any issue in the case, but that it did prejudice the jury against the defendant. The complaining witness testified that, when she learned of her condition, she spoke to the defendant about it one evening, when he was at her home, and that she wrote him two letters.

There is no testimony that there was any consideration for the transfer, or any delivery of the property, or that the bill of sale was ever delivered, but that the brother, along about Christmas time, when he heard about the trouble, he told the defendant to go and put the bill of sale on record.

In the case of Chaufty v. De Vries, 41 R. I. 1, 102 A. 612, 616, “a jitney passenger” sued the defendant for injuries received in an accident; he is asked, “Did you make any transfer of your property immediately after this jitney accident?” and over objection he answers:

“I transferred my part of my property to my wife. It was intended to be done long before.”

“Q. But you did it immediately after this accident, didn't you? A. Yes, sir.”

In holding that this testimony was proper, the Rhode Island court reviewed the authorities as follows:

“In Heneky v. Smith, 10 Or. 349, 356, 45 Am. Rep. 143, which was an action for assault, it was shown that defendant and his wife made a conveyance of their property (some 400 acres of land) for the expressed sum of $12,000. The deed was executed 14 days after the shooting, and 6 days after the action was commenced and the summons served.”

“In view of its character, and the circumstances under which it was executed, we think it was properly admitted. The jury might reasonably infer from this act of the appellant, in view of all its surroundings, that it was prompted by a consciousness on his part, that the shooting of the respondent was unjustifiable, and that he was legally liable for the damages occasioned by it. In this view, it would operate like an admission of liability, and be equally competent. ‘Admissions may be by acts, as well as by words.’ 2 Wharton's Law of Ev. § 1081; Pennsyl. R. R. Co. v. Henderson, 51 Pa. 315. [Other cases cited.]

In a recent case the Supreme Court of Michigan admitted such testimony as proper. The headnote sufficiently states the question before the court and the ruling: ‘Where in an action for assault and battery, including ravishment, the evidence showed that on the day following the assault plaintiff informed her husband, who then sought and found defendant, and requested him to be at the husband's house that night, evidence that thereafter during the same afternoon defendant approached a third person and asked him if he would go on defendant's bond, if desired, was admissible to indicate guilty knowledge.

In this case the defendant had not told the intending bondsman what he wanted it given for, saying he would tell him later; nevertheless, the Supreme Court said: ‘It was claimed by the plaintiff that it was fairly inferable from the sequence of facts that inquiry as to bonds was the result of his talk with plaintiff's husband, and tended to indicate guilty knowledge. We are not prepared to say that such evidence had no probative force, and do not find its admission reversible error.’ Totten v. Totten, 172 Mich. 565, 570, 138 N. W. 257-259 (1912).

In Harrod v. Bisson, 48 Ind. App. 549, 551-555, 93 N. E. 1093, in a suit for malpractice against a...