State v. Fuchs

• Decision Date: 20 January 1922
• Parties: STATE v. FUCHS.
• Court: North Dakota Supreme Court

48 N.D. 730

186 N.W. 752

STATE

v.FUCHS.

Supreme Court of North Dakota.

Jan. 20, 1922.

Syllabus by the Court.

On an appeal by the defendant from a judgment rendered against him in a bastardy proceeding, and from an order denying a new trial, it is held that the verdict has substantial support in the evidence.

In a bastardy proceeding, the principal question to be determined is whether the accused is the father of the child involved; and, ordinarily, the exact day on which the child was begotten is not material except as it bears on such principal question.

For reasons stated in the opinion, error predicated upon a ruling made in cross-examination of the complaining witness is held to be nonprejudicial.

Appeal from District Court, Sheridan County; Nuessle, Judge.

Bastardy proceeding by the State against George Fuchs. From a judgment for the state. From an order denying a new trial, the defendant appeals. Affirmed.Geo. Thom, of Denhoff, for appellant.

Peter A. Winter, of McClusky, for the State.

CHRISTIANSON, J.

This is an appeal by the defendant from a judgment rendered against him in a bastardy proceeding. On November 26, 1920, one Anna Moser made complaint, under oath, before a justice of the peace in Sheridan county, charging:

“That she is an unmarried woman and is pregnant with a child which, if born alive, may be a bastard, begotten by the defendant, on or about the 22d day of June, 1920, at or near Denhoff, Sheridan county, N. D.”

Upon such complaint a warrant was issued, the defendant was apprehended and brought before the justice of the peace, where he was given a preliminary examination as provided by section 10486, C. L. 1913. On November 26, 1920, the justice of the peace made an order that the defendant be required to give an undertaking in the sum of $1,000, with sufficient sureties, payable to the state of North Dakota, and conditioned that he would appear at the next term of the district court of that county, and from term to term until the final disposition of the proceeding, to answer the complaint and abide the judgment and orders of the court therein. On January 24, 1921, the complaining witness was delivered of a child, which was alive at the time of the trial. In the district court the defendant filed an answer denying the charge set forth in the complaint, and demanded that the issue framed thereby be tried by a jury. The case was tried in June, 1921, and the jury returned a verdict declaring the defendant to be the father of the child of the complaining witness. On June 11, 1921, the court entered judgment in conformity with the verdict. Thereafter the defendant moved for a new trial on the grounds of insufficiency of the evidence, and alleged errors in rulings on the admission of evidence, and in the instructions given to the jury. The motion was denied, and the defendant has appealed from the judgment and from the order denying a new trial.

[1] Appellant contends that the evidence is insufficient to sustain the verdict. The argument in support of this contention is almost wholly an attack upon the credibility of the complaining witness. It is pointed out that, in certain particulars, her testimony at the trial is different from her testimony at the preliminary examination. Thus it is said that at the preliminary examination she testified that she had sexual intercourse with the defendant on June 22, 1920, and that she became pregnant as a result thereof, and that upon the trial she testified that she had sexual intercourse with the defendant on May 11, 1920, and became pregnant at that time. While this in a sense is true, an examination of the transcript of the testimony given by the complaining witness before the justice of the peace discloses that she at that time testified that she had had sexual intercourse with the defendant not only on June 22, 1920, but also at a date prior to June 22, 1920, and upon the trial in the district court she still asserted that she had had intercourse with him on June 22. It is undisputed that she gave birth to a child, and that she is unmarried. The evidence shows that she and the defendant had been keeping company from June, 1919, till February, 1920. There is some intimation that at that time a disagreement arose; but the complaining witness says that the defendant later “made everything good.” She also testified positively that on May 11, 1920, he came and took her for a ride, and that upon that occasion they had sexual intercourse, and that they again had such intercourse on June 22, 1920. She testified positively that she at no time had sexual intercourse with any one other than the defendant; and there is not the slightest proof in the record tending to show that she did. It is elementary that the credibility of witnesses and weight of testimony are questions for the jury. This rule is, of course, applicable in bastardy proceedings. See State v. Peoples, 9 N. D. 146, 148, 82 N. W. 749;State v. Brandner, 21 N. D. 310, 316, 130 N. W. 941. The complaining witness was given a thorough cross-examination. The discrepancies in her testimony were clearly pointed out. Judging by the record before us, the complaining witness was an ignorant girl. The jury saw her, and heard her story. That story is not so incredible as to be unworthy of belief. State v. Brandner, 21 N. D. 310, 130 N. W. 941, presented a situation very similar to that presented here. There, as here, it was contended that the evidence was insufficient to sustain a verdict against the defendant. And it was pointed out that the complaining witness

-“first accused the defendant of having but one act of intercourse with her and that upon February 10,...