State v. Brunette

• Decision Date: 23 December 1914
• Citation: 150 N.W. 271,28 N.D. 539
• Parties: STATE v. BRUNETTE.
• Court: North Dakota Supreme Court

28 N.D. 539

150 N.W. 271

STATE

v.BRUNETTE.

Supreme Court of North Dakota.

Oct. 10, 1914.

On Rehearing, Dec. 23, 1914.

Syllabus by the Court.

A bastardy proceeding which is brought under the provisions of chapter 5, Rev. Codes 1905, §§ 9647-9664, although quasi criminal in its nature, is governed, in so far as its trial is concerned, by the law regulating civil actions.

In a bastardy proceeding which is brought under the provisions of chapter 5, Rev. Codes 1905, §§ 9647-9664, evidence as to the reputation of the defendant for chastity is not admissible.

It is not error in a bastardy proceeding to permit the complaining witness to testify that the defendant, before the acts of intercourse complained of, led her to believe that they were to be married, as such evidence tends to show the relationship of the parties and is corroborative in its nature.

It is not error to refuse to permit the complaining witness to testify as to presents given her by other men, when the questions asked are general and are not confined to the times in issue.

Where counsel for defendant in his closing argument makes a statement: “This is M., I could say more. I couldn't say less. He is an absolutely unreliable man and an absolutely unreliable police magistrate”-and there is no evidence in the record which tends in any way to question the general reliability of the witness, nor any which casts discredit upon his career as a police magistrate, it is not error for the court to say: “I think you will have to be a little careful, Mr. H., in the use of your words. You have a certain latitude, but beyond that, please don't go. * * * Getting so close to the line, it was dangerous.”

It is not error in a bastardy proceeding to refuse to allow the complainant to testify on cross-examination as to whether she had, outside of the period of gestation, asked the defendant to go with her to a house of prostitution.

It is not necessary to a conviction under chapter 5 of the Criminal Code of North Dakota (Rev. Codes 1905, §§ 9647-9664) that the testimony of the complainant should be corroborated by other evidence.

Where counsel wishes to take advantage of alleged errors in the court's charge, he should point out the portion of the charge which is subject to criticism, and wherein the defects, if any, consist.

Section 9655, Rev. Codes 1905, which provides that in a bastardy proceeding and in cases of a verdict of guilty, the court “shall render such judgment as may seem necessary to secure, with the assistance of the mother, the maintenance * * * of such child until such time as the child is likely to be able to support itself. * * * The court may at any time upon the motion of either party upon ten days' notice to the other party, vacate or modify such judgment as justice may require” presupposes that the court shall reasonably acquaint himself with the necessities of the case. It nowhere, however, provides for the method or how the information shall be obtained. The taking of testimony, therefore, upon such questions and before the rendition of judgment is not necessary, where the station in life, age, and occupations of all of the parties interested have been fully exposed upon the trial, and especially where the defendant takes no exception to the methods pursued by the trial court until after the rendition of the judgment.

On Rehearing.

Before the contents of medical books may be introduced in evidence and read to the jury for the purpose of refuting the testimony of a medical expert, it is necessary that the attention of the witness shall be first called to such books, and that he shall have based his opinion upon the same, and it would be a mere evasion of the rule to allow counsel, in the cross-examination of a witness who has not either based his opinion upon the specific book nor upon the authorities generally nor whose opinion in the nature of things must necessarily be based upon authorities, to read to such witness portions of a medical work, and to ask him if he concurs in or differs from the opinions therein expressed. Such a proceeding would be nothing more nor less than impeaching the witness by a text-book on which he has in no way relied, and where no foundation for his impeachment has been laid, and by an authority who is not present in court and cannot be cross-examined.

Where, however, a medical witness has in his examination in chief based his opinion upon the medical authorities generally, rather than upon the result of his own personal experience, it is permissible in cross-examination to read to him portions of medical works and to ask if he concurs therewith or differs therefrom, and to thus test his knowledge and reading and accuracy, even though he has not, in his direct or cross-examination, referred to any specific work. Where this is done, however, the proper practice is for the court to caution the jury that it is the testimony of the witness, and not what is read from the book, that constitutes evidence in the case.

Appeal from District Court, Cass County.

Bastardy proceeding against Francis Brunette. From judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

This is an appeal from a judgment of the district court of Cass county, and from an order denying a motion for a new trial, and which judgment determined that the defendant was the father of a bastard child and ordered him to pay for its support the sum of $120 a year quarterly until the 10th day of August, 1917, and $150 a year thereafter until the 10th day of August, 1928, and to provide a bond in the sum of $2,250, or on default to be committed to the county jail.

M. A. Hildreth, of Fargo, for appellant. A. W. Fowler, State's Atty., of Fargo, for the State.

BRUCE, J. (after stating the facts as above).

Counsel for appellant has made 78 assignments of error in this case, and states in his brief that these various assignments “will convince every unprejudiced mind that the defendant did not have a fair and impartial trial, and that the rulings of the court were highly prejudicial.” We cannot see any merit in any of these assignments, and yet we do not plead guilty to prejudice in this matter, nor can we find anywhere in the recordany indication of prejudice on the part of the learned trial judge.

[1][2] The first assignment of error claims that it was prejudicial error for the trial court to refuse to permit the defendant to introduce testimony showing that his reputation as to chastity and virtue prior to being arrested was good. In the case of State v. Brandner, 21 N. D. 310, 130 N. W. 941, the court has held that a bastardy proceeding which is brought under chapter 5 of the Code of Criminal Procedure is quasi criminal in its nature but that the Legislature has provided in section 9653, R. C. 1905, and had the constitutional right to provide that the trial should be governed by the law regulating civil actions. Such being the case, we seem to have no option but to hold that in such cases the civil rule as to the admissibility of character evidence prevails, and that according to such rule, and except in the case of libel and slander, such evidence is inadmissible, seems to be overwhelmingly, if not universally, conceded. Jones on Evidence, § 148; Stoppert v. Nierle, 45 Neb. 105, 63 N. W. 382; Walker v. State, 6 Blackf. (Ind.) 1; Houser v. State, 93 Ind. 228;Low v. Mitchell, 18 Me. 372; 5 Cyc. 662; Sidelinger v. Bucklin, 64 Me. 371; 3 Am. & Eng. Enc. of Law, 884.

The cases cited by counsel for respondent, indeed, are all strictly criminal cases, involving offenses such as murder, larceny, and assault and battery, and though in addition thereto we have been able to find the cases of Hawkins v. State, 21 N. J. Law, 630, Dally v. Woodbridge Tp., 21 N. J. Law, 491, and Webb v. Hill (Co. Ct.) 115 N. Y. Supp. 267, which seems to hold to a contrary doctrine (and these are all which we can find), all of them treat the action as criminal, or at least quasi criminal, and in none of them is to be found a reference to a statute such as ours, which provides that “the trial of such proceedings shall, * * * be governed by the law regulating civil actions.” Section 9653, R. C. 1905. The case at bar, indeed, seems to come squarely within the rule that in a civil action (and though quasi criminal in its nature this action, as far as procedure is concerned, must be treated as a civil one), and except in the cases of slander and libel, the character of the defendant is not in issue, and that evidence in relation thereto is therefore inadmissible. Jones on Ev. § 148.

We find no reversible error in the rulings of the trial court on the cross-examination of the plaintiff's witness, Dr. Chagnon. It is argued that the doctor had testified on direct examination that the normal period of gestation is 270 days; that the medical authorities and physicians laid down as a minimum, and maximum, 270, 260, and 265 days, or a few days over. He then testified over the objection of the defendant that it was a fact that some of the physicians and text-books laid down a minimum as low as 249 or 285 days. He then testified that a child could be born at seven months, or eight months, and live, and that in his opinion, from the character of the child with respect to the quality of its nails and hair, it was a normal child. On the cross-examination, the following took place:

“Defendant's Counsel: Q. Let's see if you will agree with what I am going to read to you. (Reads:) ‘The duration of pregnancy has an important bearing upon the questions of legitimacy and paternity. The signs of pregnancy, time of quickening, etc., have already been considered in another connection.’

Plaintiff's Counsel: Just a minute. If the court please, we object to this as not proper cross-examination. It doesn't seem to me counsel should read this.

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The Court: Let's see the book, and I can see just what is coming.

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Plaintiff's Counsel: Our objection is that it is not proper...