State v. Brandner

Decision Date22 March 1911
Citation130 N.W. 941,21 N.D. 310
CourtNorth Dakota Supreme Court

Appeal from District Court, McIntosh county; Allen, J.

Friedrich Brandner was adjudged to be the father of a bastard child and he appeals.


Wolfe & Schneller and Hugo P. Remington, for appellant.

No statute is unconstitutional because its title is too broad or general, if all parts are germane to the one subject expressed in the title. State v. Morgan, 2 S.D. 32 48 N.W. 314; State v. Becker, 3 S.D. 29, 51 N.W 1018; State ex rel. Poole v. Peake, 18 N.D. 101, 120 N.W. 47.

"Criminal procedure" must deal with some proceeding relating to crime. Ex parte Tom Tong, 108 U.S. 556, 27 L.Ed. 826, 2 S.Ct. 871; 1 Bishop, Crim. Law, P 43; Black, Law Dict. p. 301; 12 Cyc. Law & Proc. p. 130, and notes 4 & 5; People v. McNulty, 93 Cal. 427, 26 P. 597, 29 P. 61.

The bastardy act is unconstitutional. State v. Tieman, 32 Wash. 294, 98 Am. St. Rep. 854, 73 P. 375.

The bastardy proceeding is a civil one. Head v. Martin, 85 Ky. 480, 3 S.W. 622; Godding v. State, 39 Ind.App. 42, 78 N.E. 257; State v. Tieman, supra; Williams v. State, 117 Ala. 199, 23 So. 42; Re Wheeler, 34 Kan. 96, 8 P. 276, 6 Am. Crim. Rep. 70; Hawes v. Gustin, 2 Allen, 402; State v. Liles, 134 N.C. 735, 47 S.E. 750; Bell v. Territory, 8 Okla. 75, 56 P. 853; State v. Knowles, 10 S.D. 471, 74 N.W. 201; State v. McKnight, 7 N.D. 444, 75 N.W. 790; Rose v. People, 81 Ill.App. 128.

Bastardy law has nothing to do with criminal procedure. Vinsant v. Knox, 27 Ark. 266; People ex rel. Atty. Gen. v. Parvin, 74 Cal. 548, 16 P. 490; State ex rel. Woodsides v. McDaniel, 19 S.C. 114; Van Houton v. People, 22 Colo. 53, 43 P. 137; Re Howard County, 15 Kan. 194; Laramie County v. Stone, 7 Wyo. 280, 51 P. 605; Louisiana v. Pilsbury, 105 U.S. 278, 26 L.Ed. 1090; State v. Mitchell, 17 Mont. 67, 42 P. 100; Skinner v. Wilhelm, 63 Mich. 568, 30 N.W. 311; State ex rel. Stearns v. Corner, 22 Neb. 265, 3 Am. St. Rep. 267, 34 N.W. 499; State v. Wright, 14 Or. 365, 12 P. 708; State v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765; State v. Silver, 9 Nev. 227; Clark v. Wallace County, 54 Kan. 634, 39 P. 225.

Geo. M. Gannon, State's Attorney, W. S. Lauder, and Wishek & Shubeck, for respondent.

Bastardy proceeding is neither civil nor criminal, but partakes of the character of both. Re Lee, 41 Kan. 318, 21 P. 282; State v. Scott, 7 S.D. 619, 65 N.W. 31; Clark v. Carey, 41 Neb. 780, 60 N.W. 78, 9 Am. Crim. Rep. 117; State v. Lang, 19 N.D. 679, 125 N.W. 558.

A preponderance of the evidence is all that is necessary to entitle plaintiff to a verdict. State v. Bunker, 7 S.D. 639, 65 N.W. 33; State v. Knutson, 18 S.D. 444, 101 N.W. 33; 5 Cyc. Law & Proc. p. 664.

If the subject of a refused instruction is covered by the general charge, it is not error to refuse the request. State v. Kent (State v. Pancoast) 5 N.D. 516, 35 L.R.A. 518, 67 N.W. 1052; State v. McGahey, 3 N.D. 293, 55 N.W. 753; Daeley Bros. v. Minneapolis & N. Elevator Co. 4 N.D. 269, 60 N.W. 59; Smith v. Hawley, 14 S.D. 638, 86 N.W. 652; Young v. Harris, 4 Dak. 367, 32 N.W. 97; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1; Perin v. Parker, 126 Ill. 201, 2 L.R.A. 336, 9 Am. St. Rep. 571, 18 N.E. 747; Virginia Midland R. Co. v. White, 84 Va. 498, 10 Am. St. Rep. 874, 5 S.E. 573; Austin & N.W. R. Co. v. Anderson, 79 Tex. 427, 23 Am. St. Rep. 350, 15 S.W. 484; 1 Blashfield, Instructions to Juries, § 152, and note 148.



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.

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 § 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. Law & Proc. p. 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, 19 N.D. 679, 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. Tieman, 32 Wash. 294, 98 Am. St. Rep. 854, 73 P. 375, 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 eighteen 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 case. If the hearsay feature of the question was not prejudicial enough to attract his attention at the trial, he cannot expect us to notice it upon appeal. Objections to questions made at the trial should be taken with the idea of aiding the trial court, not in confusing him. Another question objected to was asked the defendant upon cross-examination by the state's attorney, as to whether or not he had been accused of the parentage of the child by the complainant's parents. The state was trying to impeach the testimony of the defendant at the time, and we think the question entirely proper. Toward the close of the trial, the state recalled one of its witnesses to clear up some of his testimony, and, while on the stand, he reiterated a small part of the testimony that he had previously given. This is objected to by the defendant as repetition. If that was not entirely proper, it is, as least, not prejudicial enough to justify a reversal.

The third and fourth grounds relied upon by the defendant for a reversal is the giving of certain instructions to the jury by the trial judge and his refusal to give certain requested instructions for the defendant. The instructions given and the requests made are too lengthy to be set forth in this opinion, especially as there is but one point involved. The defendant's claim is stated by him in his brief as follows: "If this is a criminal proceeding, and the law properly embraced in...

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