State v. Hollinger, 6604.

• Decision Date: 19 July 1939
• Docket Number: No. 6604.,6604.
• Citation: 287 N.W. 225,69 N.D. 363
• Parties: STATE v. HOLLINGER.
• Court: North Dakota Supreme Court

69 N.D. 363

287 N.W. 225

STATE

v.HOLLINGER.

No. 6604.

Supreme Court of North Dakota.

July 19, 1939.

Syllabus by the Court.

1. In an action under the Uniform Illegitimacy Act (Laws 1923, Ch. 165; 1925 Supplement, Sections 10500a1-10500a37) the evidence is examined, and for reasons stated in the opinion, it is held, that the findings of the trial court that the defendant is the father of the child are in accord with the preponderance of the evidence.

2. Those parts of the Uniform Illegitimacy Act (Laws 1923, Ch. 165, § 22; 1925 Supplement, Section 10500a22) which provide that “the court may require the father to give security by bond with sureties, for the payment of the judgment” for the support of the child; and that “in default of such security, when required, the court may commit him to jail,” do not prescribe or authorize imprisonment for debt in contravention of Section 15 of the Constitution of the State, as the obligation of the father to support his child is not, nor is a judgment based upon such obligation, a debt within the purview of the constitutional guarantee.

Appeal from District Court, Stark County; Miller, Judge.

Action by the State under the Uniform Illegitimacy Act, Comp. Laws Supp.1925, §§ 10500a1-10500a37, against Peter J. Hollinger. From a judgment against the defendant, declaring paternity and for support of the child, the defendant appeals.

Judgment affirmed.

C. H. Starke, of Dickinson, for appellant.

T. F. Murtha, State's Atty., of Dickinson, for respondent.

CHRISTIANSON, Judge.

This is an appeal by the defendant from a judgment of the District Court of Stark County rendered in an action instituted under the Uniform Illegitimacy Act (Laws 1923, Ch. 165; 1925 Supplement, Sections 10500a1-10500a37). The action was instituted upon the complaint of one Anna K. Martin, charging: “That she is an unmarried female; that she gave birth on the 4th day of April, A. D. 1937, to a child now living, which child was begotten by one Peter Hollinger, above named defendant and that said Peter Hollinger is the father of said child; that the intercourse resulting in the birth of said child was had on or about the 30th day of June, A. D. 1936, in Stark County, North Dakota; that the complainant was an unmarried female at the time of said intercourse and has been an unmarried female ever since.”

The defendant denied the charge set forth in the complaint, and the issues thus framed were tried to the court, without a jury. The trial court found as a fact that the defendant is the father of the child, and ordered judgment to be entered against him declaring paternity and for the support of the child, and requiring the defendant to give security by bond for the payment of the judgment, and providing that in event the defendant failed to furnish such bond or make such payment “he may be committed to jail as provided by law.” Judgment was entered accordingly, and the defendant has appealed from the judgment and demands a trial anew in this Court.

Appellant contends:

1. That the evidence is insufficient to justify the findings and the judgment entered pursuant thereto.

2. That the provisions in the judgment requiring the defendant to give security by bond for the payment of the judgment, and that in event he fails to give such bond or make such payment “he may be committed to jail as provided by law” violate rights guaranteed to the defendant by the State Constitution. These contentions will be considered in the order stated.

[1] (1) It is undisputed that the complaining witness gave birth to a child on April 4, 1937. It is, also, undisputed that she now is, and always has been, unmarried. She is a resident of Stark County in this State, and has resided in that County practically her whole life. In June, 1936, she lived with her parents on a farm south of Gladstone. On June 26, 1936, she came to Gladstone with her father. They arrived in Gladstone about 5:30 p. m., and they parked their car not far from the alley in a vacant lot adjacent to a certain store. Her principal purpose in coming to town was to get a haircut, and after she had obtained a haircut she went back and sat in the car, and was sitting there, about 7:30 p. m., when the defendant, Hollinger, came by. The complaining witness was then almost eighteen years of age, and the defendant some two years older. They had known each other since they were small children. The complaining witness testified that Hollinger came and sat beside her in the front seat, and that after they had talked awhile he suggested that they sit in the back seat; that they did this. That thereafter he fondled and kissed her, and, also, had sexual intercourse with her. According to her testimony, the child was begotten as a result of such intercourse, and she did not have any other sexual intercourse on that day, or before or subsequent to June 26, 1936, which could possibly have resulted in her pregnancy. The defendant denies that he had sexual intercourse with the complainant on June 26, 1936. He admits, however, that he stopped at the car and talked to her. He, also, admits that he sat with her in the car. He, also, admits that he and she were alone for some time. But, he claims that he did not sit in the car except when some one else was present, and that when he and the complaining witness were alone, he stood outside and talked to her as she sat in the car. He claims that when he came by and stopped and talked to her he remained standing outside until another young man came by, and that then, at her suggestion, he entered the car and sat down beside her, and that from that time on some one else was always present.

It will be noted there is an irreconcilable conflict between the testimony of the complaining witness and that of the defendant upon the main fact. Did the complaining witness tell the truth, when she testified that the defendant had sexual intercourse with her at Gladstone on June 26, 1936, and when she testified that no one else had had intercourse with her during the period of time that the conception must have taken place? If so, the defendant testified falsely, and he is the father of the child.

The defendant contends that the testimony of the complaining witness, viewed in light of the facts and circumstances, is shown to be untrue, or in any event so improbable that it is insufficient to establish the charge against the defendant. Counsel for the plaintiff, on the other hand, points to certain incidents which he claims tend to corroborate the testimony of the complaining witness, and others which he claims tend to impair the testimony of the defendant. No good purpose would be subserved by entering into an extended discussion of these various incidents and circumstances. The trial court, after hearing and seeing the parties, concluded that the complaining witness told the truth. A careful reading of the evidence as contained in the record, and consideration of the incidents and circumstances on which the respective parties rely, lead us to the same conclusion. The testimony of the complaining witness seems frank and fair. She laid no undue blame on the defendant. Her statements as to what occurred are in no particular improbable, but rather bear the mark of truthfulness.

In support of the contention that the evidence is insufficient, appellant's counsel lays considerable stress on the testimony of a doctor that was called as a witness for the defendant. The complaining witness testified that the intercourse with the defendant took place about two days after her menstrual period, and the doctor testified that there was slight likelihood that a woman would become pregnant as a result of intercourse had at that time. However, the...