State v. Brunette
| Decision Date | 10 October 1914 |
| Citation | 150 N.W. 271,28 N.D. 539 |
| Court | North Dakota Supreme Court |
On Rehearing December 23, 1914.
Appeal from the District Court of Cass County. Prosecution for bastardy. Judgment for plaintiff. Defendant appeals.
Reversed and new trial ordered.
Affirmed.
M. A Hildreth, for appellant.
Quotations from medical works may be incorporated in questions used in catechising an expert as to his technical knowledge. Hutchinson v. State, 19 Neb. 262, 27 N.W. 113; Sale v. Eichberg, 105 Tenn. 333, 52 L.R.A. 894, 59 S.W. 1020; Hess v. Lowrey, 122 Ind. 225, 7 L.R.A 92, 17 Am. St. Rep. 355, 23 N.E. 156; Cronk v. Wabash R Co. 123 Iowa 349, 98 N.W. 885; State v. Holter, 32 S.D. 43, 46 L.R.A. (N.S.) 376, 142 N.W. 657; Tompkins v. West, 56 Conn. 478, 16 A. 237; State v. Coleman, 20 S.C. 441; Connecticut Mut. L. Ins. Co. v. Ellis, 89 Ill. 516; Williams v. Nally, 20 Ky. L. Rep. 244, 45 S.W. 874; Pinney v. Cahill, 48 Mich. 584, 12 N.W. 862; Brown v. Sheppard, 13 U. C. Q. B. 178; Eggart v. State, 40 Fla. 527, 25 So. 144; Bloomington v. Shrock, 110 Ill. 222, 51 Am. Rep. 678; Clark v. Com. 111 Ky. 443, 63 S.W. 740; State v. Winter, 72 Iowa 627, 34 N.W. 475; State v. Wood, 53 N.H. 484.
It is proper in such cases for defendant to offer evidence of his good character. Defendant is presumed innocent; he is entitled to every reasonable doubt, and sometimes such evidence may be very valuable to a person charged with such offense. Fields v. State, 47 Ala. 603, 11 Am. Rep. 771; 1 Green, Crim. Rep. 635; Lowenberg v. People, 5 Park. Crim. Rep. 414; Hall v. State, 40 Ala. 698; People v. Ashe, 44 Cal. 288; People v. Lamb, 54 Barb. 342; Stover v. People, 56 N.Y. 315; State v. McMurphy, 52 Mo. 251.
It is highly competent for defendant to show that complaining witness had been with other men at times within the issue, and the opportunities for intercourse with others. To refuse such evidence was very prejudicial to defendant. Richards v. Ann Arbor, 152 Mich. 15, 115 N.W. 1047; Hedlum v. Holy Terror Min. Co. 16 S.D. 261, 92 N.W. 31; Graham v. McReynolds, 90 Tenn. 673, 18 S.W. 272.
The evidence as to the relations of the complaining witness with other men was highly important; it was competent. Burris v. Court, 34 Neb. 187, 51 N.W. 746; State v. Woodworth, 65 Iowa 141, 21 N.W. 490; State v. Karver, 65 Iowa 53, 21 N.W. 161, 5 Am. Crim. Rep. 88; State v. Borie, 79 Iowa 605, 44 N.W. 824, 8 Am. Crim. Rep. 87.
A. W. Fowler, for respondent.
It would be an evasion of the general rule to permit counsel on cross-examination to read to the witness portions of medical works, and to ask the witness if he concurred in or offered a different opinion from the one read. Marshall v. Brown, 50 Mich. 148, 15 N.W. 55; People v. Millard, 53 Mich. 63, 18 N.W. 562; Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 678; State v. Winter, 72 Iowa 627, 34 N.W. 475.
Such practice is, in effect, the same as offering the book in evidence. Jones, Ev. §§ 578, 579 and cases cited in note 91; Abbott, Trial Brief, p. 329.
It is competent to prove a promise of marriage, or that defendant led complaining witness to believe they were to be married, either before or at the time of the intercourse. Laney v. State, 109 Ala. 34, 19 So. 531; Woodward v. Shaw, 18 Me. 304.
In such a case, the character of defendant is not in issue. Walker v. State, 6 Blackf. 1; Low v. Mitchell, 18 Me. 372; Houser v. State, 93 Ind. 228; Sidelinger v. Bucklin, 64 Me. 371; Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382.
It is proper to contradict the testimony of an expert medical witness, by referring to and reading into the evidence on cross-examination the very book of work used and referred to by the witness. Jones, Ev. § 579, and cases cited.
Where a ruling is wrong, and counsel is thereafter given full opportunity to cross-examine complainant on the same subject, the error is cured. Langford v. Issenhuth, 28 S.D. 451, 134 N.W. 894; Friedenwald v. Welch, 174 Mich. 399, 140 N.W. 564.
Proof of other acts of intercourse must be confined to the period of gestation. 2 Enc. Ev. 248 and cases.
Complainant's character for chastity, and her acts of intercourse outside the period of gestation, are not within the issues of such a case as the one here. Jones, Ev. § 153 and cases; Davison v. Cruse, 47 Neb. 829, 66 N.W. 823; Bookhout v. State, 66 Wis. 415, 28 N.W. 179; State ex rel. Clifton v. Granger, 87 Iowa 355, 54 N.W. 79; Force v. Martin, 122 Mass. 5.
The uncorroborated evidence of complainant is sufficient to sustain a verdict. 2 Enc. Ev. 255, and cases; State v. Peoples, 9 N.D. 146, 82 N.W. 749.
Statement by
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.
BRUCE, J. (After stating the facts as above). Counsel for appellant has made seventy-eight 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 record any indication of prejudice on the part of the learned trial judge.
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 § 9653, Rev. Codes 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, Ev. § 148; Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382; Walker v. State, 6 Blackf. 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. 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.L. 630, Dally v. Woodbridge Overseers, 21 N.J.L. 491, and Webb v. Hill, 115 N.Y.S. 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." Rev. Codes 1905, § 9653. 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, 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 textbooks 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).
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. . . .
The court: Let's see the book, and I can see just what is coming. . . .
Plaintiff's counsel: Our objection is that it is not proper to use a medical book of this character on cross-examination.
The Court: Objection sustained.
Defendant's counsel: I would like to make a little offer of proof.
The Court: Well, all you want to do is to read from a book. You can ask him any question you have a mind to, bearing upon that subject, but the only extent of this rule is that you can't read from the book. . . .
Defendant's counsel: I can't use the...
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