State v. Goetz

• Decision Date: 06 May 1911
• Citation: 131 N.W. 514,21 N.D. 569
• Court: North Dakota Supreme Court

131 N.W. 514

21 N.D. 569

THE STATE OF NORTH DAKOTA v. CORNELIUS GOETZ

Supreme Court of North Dakota

May 6, 1911

Rehearing denied May 29, 1911.

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 respondent.

GOSS J. MORGAN, Ch. J., not participating.

OPINION

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.

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 of 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 Okla. 261, 61 L.R.A. 234, 71 P. 218, affirmed on appeal in 190 U.S. 548, 47 L.Ed. 1175, 23 S.Ct. 762; see also Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258; Kohl v. Lehlback, 160 U.S. 293, 40 L.Ed. 432, 16 S.Ct. 304; Raub v. Carpenter, 187 U.S. 159, 47 L.Ed. 119, 23 S.Ct. 72.

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, 40 L.Ed. 432, 16 S.Ct. 304; Raub v. Carpenter, 187 U.S. 159, 47 L.Ed. 119, 23 S.Ct. 72; 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, 47 L.Ed. 1175, 23 S.Ct. 762; McNish v. State, 47 Fla. 69, 36 So. 176; Webster v. State, 47 Fla. 108, 36 So. 584; Lindsey v. State, 111 Ga. 833, 36 S.E. 62; Adams v. State, 99 Ind. 244, 4 Am. Crim. Rep. 309; 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 A.D. 8, 52 N.Y.S. 706; Goad v. State, 106 Tenn. 175, 61 S.W. 79; Morse v. Montana Ore Purchasing Co. 105 F. 337, 12 Decen. Dig. 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, 47 L.Ed. 1175, 23 S.Ct. 762.

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 eighteen-year-old Russian girl is admitted. Much of the testimony, including that of the prosecutrix, was elicited through the use of 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 necessity for 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 court room, show sufficient cause for sanctioning the method of examination alleged as error.

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 first 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 expert testimony offered. Granting, however, that such testimony was admissible, it would be but corroborative of the testimony of the prosecutrix wherein she testified, during her direct examination, to several acts of intercourse with the defendant during the month of March, previous to the time of last intercourse, about April first. In her cross-examination she changed her testimony, denying all acts of intercourse excepting one, and fixed this act of intercourse as having taken place on April 1st, eight and one-half months prior to the date of her child's birth. The jury could have concluded from the testimony that she had intercourse with the defendant at other times, or at an earlier date, than the single...