State v. Goetz

• Citation: 21 N.D. 569,131 N.W. 514
• Parties: STATE v. GOETZ.
• Decision Date: 29 May 1911
• Court: United States State Supreme Court of North Dakota

21 N.D. 569

131 N.W. 514

STATE

v.GOETZ.

Supreme Court of North Dakota.

May 6, 1911.

Rehearing Denied May 29, 1911.

Syllabus by the Court.

Failure to exercise a peremptory challenge is a waiver of previous objection to a juror to whom a challenge for cause had been taken and disallowed.

Before a new trial will be ordered because of an erroneous or prejudicial ruling of the trial court in denying a challenge for cause, the record must affirmatively show that all peremptory challenges allowed by law to the defendant had been exercised, and that for such reason he was unable to remove by peremptory challenge such objectionable juror.

The trial court properly sustained objections to certain hypothetical questions; there being no evidence upon which to base the expert testimony offered.

Held, that the court did not in its instructions misplace the burden of proof, and that defendant was not entitled to a new trial because of the nonappearance of a witness under subpœna.

Evidence examined, and held sufficient to sustain conviction.

Appeal from District Court, Pierce County; Burr, Judge.

Cornelius Goetz was convicted of crime, and appeals. Affirmed.John O. Hanchett, for appellant. B. L. Shuman, for the State.

GOSS, J.

Defendant appeals to this court from a judgment entered on a verdict in the district court of Pierce county, in which he was adjudged to be the father of a child born to an unmarried woman of that county. The proceeding was a prosecution under the bastardy statute.

[1] Error is assigned on the court's denial of a challenge for actual bias, interposed by the defendant to one of the jurors, who acted as such on the trial. It is not necessary to review the ruling of the trial court in this particular. The record fails to disclose prejudicial error; it not appearing affirmatively that the defendant at the time of the ruling complained of had exhausted his peremptory challenges allowed by statute. Though the court erred in its ruling on the voir dire of a juror, the defendant not having exhausted his peremptory challenges, passed peremptory to the panel, thereby accepting the jury while having it in his power to have removed the objectionable juror, he by failing to remove him waived the objection formerly interposed and likewise the court's erroneous ruling thereon, granting that the same was such. The privilege of challenging a proposed juror is dependent upon and conferred by statute and is not a constitutional right, and may be waived even in capital cases. Queenan v. Territory, 11 Okl. 261, 71 Pac. 218, 61 L. R. A. 324, affirmed on appeal in 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175. See, also, Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258;Kohl v. Lehlback, 160 U. S. 293-301, 16 Sup. Ct. 304, 40 L. Ed. 432;Raub v. Carpenter, 187 U. S. 159, 23 Sup. Ct. 72, 47 L. Ed. 119.

[2] And the failure to object to a collected jury waives all questions improperly excluded on voir dire and all matters of irregularity occurring during the impaneling of such jury; and a party failing to challenge waives thereby all irregularities in the impaneling of a jury, and this rule applies to all rulings of the court on the question of competency of jurors. Flynn v. State, 97 Wis. 44, 72 N. W. 373;Emery v. State, 101 Wis. 627, 78 N. W. 145;Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258;Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432;Raub v. Carpenter, 187 U. S. 159, 23 Sup. Ct. 72, 47 L. Ed. 119;Cornell v. State, 104 Wis. 527, 80 N. W. 745;Brinegar v. State, 82 Neb. 558, 118 N. W. 475;Queenan v. Oklahoma, 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175;McNish v. State, 47 Fla. 69, 36 South. 176;Webster v. State, 47 Fla. 108, 36 South. 584;Lindsey v. State, 111 Ga. 833, 36 S. E. 62;Adams v. State, 99 Ind. 244;State v. Carpenter, 124 Iowa, 5, 98 N. W. 775; State v. Furbeck, 29 Kan. 532; Morgan v. State, 51 Neb. 672, 71 N. W. 788;Reed v. State, 75 Neb. 509, 106 N. W. 649;O'Rourke v. Yonkers R. Co., 32 App. Div. 8, 52 N. Y. Supp. 706;Goad v. State, 106 Tenn. 175, 61 S. W. 79;Morse v. Company (C. C.) 105 Fed. 337; 12 Dec. Dig. p. 206; 24 Cyc. 320, and numerous authorities cited. “It was his (defendant's) duty to object at the time if he was going to object at all. He could not speculate on the chances of getting a verdict and then set up that he had not waived his rights.” Queenan v. Oklahoma, 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Ed. 1175.

[5] Defendant urges that the evidence is insufficient to sustain the verdict of guilty. It is unnecessary to detail the evidence, for so to do would serve no good purpose. Suffice it to say that the birth of the child to an unmarried 18 year old Russian girl is admitted. Much of the testimony, including that of the prosecutrix, was elicited through the use of an interpreter. Her woeful ignorance stands out in bold relief throughout her testimony. She does not even know her own birthday. It is apparent, also, that she was reluctant to lay bare to the jury the whole truth as to her conduct with the defendant, and as to some circumstances her testimony is accordingly somewhat indefinite; but the actual facts necessary to convince us of the justice of the verdict are equally apparent in all the testimony, including that offered by the defendant himself. The prosecutrix is corroborated in essential and important details by the testimony of the defendant's father and defendant's brother-in-law, as well as by the brother of prosecutrix. Also defendant is contradicted and impeached in several instances in material portions of his testimony by other witnesses than the prosecutrix. The jury were fully justified in their finding that the defendant is the father of said child.

Defendant complains of leading questions having been asked of the mother during the trial. The permitting of examination by the use of leading questions is largely in the discretion of the trial judge, who hears the testimony, sees the witnesses, and can fully comprehend the necessity or want of necessityfor such method of examination, and accordingly the discretion of the trial judge as exercised in such particulars will not be disturbed, excepting for gross abuse plainly resulting to the prejudice of the defendant. This rule is so well established as to need no citation of authorities in its support. In the instant case the ignorance of the prosecutrix, the circumstance unusual to her of being obliged to relate matters to her own shame in a public courtroom, show sufficient cause for sanctioning the method of examination alleged as error.

[3] During the trial, acting upon the supposition that a foundation was laid, certain hypothetical questions were propounded to a physician as an expert witness. From a careful reading of the record we are satisfied that no sufficient foundation was laid prior to the offer of such testimony. Defendant sought to establish pregnancy by proof of cessation of the menses of prosecutrix a month or more before the date fixed by her as the probable time of conception. The testimony as to this is so indefinite and vague that the jury could not therefrom have found such condition to exist. The only definite testimony relating to this matter was on the state's motion without objection by the defendant stricken out; the court in such ruling stating that he would give defendant a chance to offer further proof along the same line and opportunity to establish such fact if defendant so desired. The only testimony thereafter offered was sought from a person who had acted as interpreter for prosecutrix at the time she consulted a physician some months previous to the birth of her child, and such testimony does not show whether the cessation of menses was in February or whether her last menses were in February prior to the last of March or 1st of April, alleged as the date of intercourse with the defendant, granting that the proof is definite enough to permit a contention that she made such a statement. This testimony is too meager upon which to admit the...