State v. Brandner

• Decision Date: 22 March 1911
• Citation: 130 N.W. 941,21 N.D. 310
• Parties: STATE v. BRANDNER.
• Court: North Dakota Supreme Court

21 N.D. 310

130 N.W. 941

STATE

v.BRANDNER.

Supreme Court of North Dakota.

March 22, 1911.

Syllabus by the Court.

Chapter 5 of the Code of Criminal Procedure of the year 1895, commonly known as the bastardy act, does not violate section 61 of our state Constitution. Said act is quasi criminal in its procedure, and is germane to the title of said Code.

While bastardy proceedings are quasi criminal in their nature, the trial of the action under section 9653, Revised Codes 1905, is governed by the rules of civil trials, and the state has the burden of proving its allegations by a fair preponderance of the evidence only. Instructions requiring a stronger degree of proof were properly refused. Instructions given examined and found correct.

Trial courts are vested with wide discretion in ruling upon the admission of leading questions. The complainant was 18 years of age, without education, who gave her testimony through an interpreter; she was being examined about acts of illicit intercourse and the birth of a bastard child born to her three weeks prior to the trial. Under those circumstances, the trial court properly allowed the state to ask leading questions.

The jury are not bound to believe or to disbelieve the entire evidence of any witness. It is their duty to examine all of the evidence offered and to arrive at the truth regarding the matter in dispute. Evidence examined, and found to sustain the verdict of the jury.

A new trial will not be granted upon the grounds of newly discovered evidence when such evidence is merely cumulative.

Appeal from District Court, McIntosh County; Allen, Judge.

Friedrich Brandner was adjudged to be the father of a bastard child, and he appeals. Affirmed.Wolfe & Schneller and Hugo P. Remington, for appellant. G. M. Gannon, W. S. Lauder, and Wishek & Shubeck, for the State.

BURKE, J.

In the district court the defendant was adjudged to be the father of a certain bastard child, and, feeling aggrieved by such adjudication, he has appealed to this court.

[1] His first contention is that there is no bastardy law in effect in this state; that chapter 5 of the Code of Criminal Procedure enacted in 1895 is unconstitutional and void because enacted under the general title of the Code of Criminal Procedure, when in truth and in fact the said chapter relates wholly to civil procedure, thus violating section 61 of our state Constitution. In his brief the defendant concedes that the said Code of Criminal Procedure, excepting said chapter 5, is constitutional and valid, so we may confine our inquiry to the single question, Does its title, “An act to establish a Code of Criminal Procedure for the state of North Dakota,” correctly describe and entitle our bastardy law? Or, conversely stated, is our present bastardy law germane to and embraced in the aforesaid title? The general object of bastardy laws is to compel the putative father to help support his child and to protect the community from the burden that might otherwise fall upon it. See 5 Cyc. 645, and cases cited. Some states believe this object best obtained by allowing the mother to bring a civil suit against the father; other states try to accomplish the same result by establishing criminal proceedings against the father. In the first-named states the legislative acts belong in the Code of Civil Procedure, in the latter states such laws belong in the Code of Criminal Procedure. It is only necessary to examine our statutes to determine to which class of states North Dakota belongs. Our bastardy law provides that the mother shall make a criminal complaint before a justice of the peace in which she asks that the father be arrested. The state's attorney of the county must prosecute. The proceedings are entitled in the name of the state. The defendant is arrested at public expense, and in lieu of bail is confined. If he is adjudged to be the father of the child and fails to obey the final order of the court, he is committed to jail. As Judge Carmody says in the case of State v. Lang, 125 N. W. 558: “Instead of beginning the action by the issuance of a summons as in civil cases a criminal proceeding is employed.” The proceedings are quasi criminal at least. The case of State v. Tierman, 32 Wash. 294, 73 Pac. 375, 98 Am. St. Rep. 854, cited and relied upon by the defendant, does not apply to North Dakota. The Legislature of the state of Washington had enacted a criminal code containing a bastardy law, but their bastardy law provides only a civil remedy. There was no provision for a criminal complaint, nor for a warrant, nor for an arrest, nor for a fine, nor for imprisonment of any kind. Their Supreme Court points out those facts, and holds that their bastardy law was a civil proceeding and belonged in their Civil Code. We therefore conclude and hold that our bastardy law was properly included in the act of criminal procedure, and is constitutional and valid.

The second grievance of the defendant relates to rulings of the trial court in admitting and excluding evidence. Most of those objections were aimed at leading questions asked by the state's attorney when examining the complainant. The record discloses that she was unable to give her testimony in the English language and was being examined through an interpreter relative to acts of illicit intercourse. She was but 18 years of age, and had given birth to her first child but three weeks before the trial. We are not surprised that the state's attorney was obliged to use leading questions. Under some circumstances, leading questions are not only permissible, but proper, and a wide discretion is therefore vested in the trial judge. A careful examination of all of the questions objected to upon this ground satisfies us that the state's attorney did not abuse his privilege, and the rulings of the trial court in that respect were correct. During the said examination the state's attorney asked the complainant the following question: “Did you say to Mrs. Brandner in her house, before Brandner came in, that you had had intercourse with Mr. Brandner before February 10th? (Objected to as leading, suggestive, calling for a conclusion of witness and cross-examination of his own witness. Overruled).” The defendant now says there is no legal justification for overruling this objection; that the hearsay character of the question is shown on the face thereof. It will be noted that at the time the question was asked no objection was made on the ground that it was hearsay. This convinces us that the objecting counsel did not then notice the hearsay feature of the question, but discovered it after he had obtained the transcript of the evidence in the...