State v. Kranendonk

• Decision Date: 12 March 1932
• Docket Number: 5196
• Citation: 79 Utah 239,9 P.2d 176
• Court: Utah Supreme Court
• Parties: STATE v. KRANENDONK

9 P.2d 176

79 Utah 239

STATE v. KRANENDONK

No. 5196

Supreme Court of Utah

March 12, 1932

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Bastardy proceeding by the State against John Kranendonk. From judgment against defendant, and from order committing him to jail, defendant appeals.

JUDGMENT AFFIRMED, and order of commitment vacated.

W. R Jones and Geo. C. Buckle, both of Ogden, for appellant.

Geo. P Parker, Atty. Gen., and L. A. Miner, Deputy Atty. Gen., for the State.

WORTHEN, District Judge. STRAUP, ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur. CHERRY, C. J., being absent, did not participate.

OPINION

WORTHEN, District Judge.

The defendant was prosecuted for bastardy, and after a trial by jury was found guilty of being the father of a child born of Hazel Swenson, as alleged in the information. The proceedings had during the trial, including the court's rulings on the evidence offered and the court's instructions to the jury, are not included in the bill of exceptions.

Before sentence was pronounced the defendant filed his motion in arrest of judgment and also filed a motion for a new trial, which motions were by the court denied, and the court pronounced judgment against the defendant, requiring him to pay to the clerk of said court the sum of $ 200 during 1931 and the sum of $ 150 each year thereafter for a period of seventeen years for the use and benefit of said child, and further ordered the defendant to file an undertaking in the sum of $ 800 with two good and sufficient sureties for the faithful performance of the terms and conditions of the judgment.

Thereafter, on the 25th day of May, 1931, the court entered an order committing the defendant to the county jail of Weber county, Utah.

The defendant's brief presents three assignments of error: First, that the court erred in overruling defendant's motion in arrest of judgment; second, that the court erred in overruling the defendant's motion for a new trial; third, that the court erred in its order of commitment.

Defendant's motion in arrest of judgment was made upon the grounds first, that the information does not state facts sufficient to constitute a public offense; second, that the information is uncertain, ambiguous, and unintelligible in failing to allege specifically the time or place of the alleged act of sexual intercourse. Defendant did not demur to the information, but alleges in his brief that objection was made to the introduction of any testimony upon the grounds set forth in the motion in arrest of judgment, and further alleges that he moved for a directed verdict upon the same grounds.

If error was committed by the court in admitting testimony over defendant's objection, defendant should have excepted to the court's ruling and assigned the ruling as error. If the court erred in refusing to direct a verdict for defendant, that error should have been assigned. Having failed to assign the court's ruling as error and having failed to assign the refusal of the court to direct the jury as requested, the error, if any was committed, is not now before this court. Perrin v. Union Pac. R. Co., 59 Utah 1, 201 P. 405. The assignment of error is the foundation upon which rests the right of the court to review any matter.

Defendant concedes that a bastardy proceeding is civil and not criminal, as far as the required proof is concerned, but contends that the pleadings and prosecution are conducted as in a criminal case, and for that reason he is entitled to the benefit of the motion in arrest of judgment. The question as to whether or not a defendant in such a proceeding may have the benefit of the statute providing for arrest of judgment (Comp. Laws Utah 1917, § 9035) has not been specifically passed on, but no good reason appears for departing from the rules applicable in other civil cases, nor is any authority therefor suggested. If, however, the motion in arrest of judgment were proper in such a case, we are of the opinion that no error was committed in its denial. Defendant has failed to point out wherein the information does not state facts sufficient to constitute a public offense except that the time and place of the alleged act of sexual intercourse is not alleged with particularity. The information does allege that the prosecutrix was, on the 31st day of January, 1931, and in the county of Weber, delivered of a child of which defendant is the father, he having prior thereto committed an act of sexual intercourse with the prosecutrix as a result of which she became pregnant. The information cannot be questioned because it failed to allege specifically when and where the act occurred. If defendant desired to be more particularly informed, he should have interposed a proper pleading. We are therefore of the opinion that the information does allege facts sufficient to constitute a public offense.

Defendant's second assignment of error is the overruling of his motion for a new trial. The motion was made upon the grounds that the court misdirected the jury upon questions of law and erred in its decision on questions acts in the case were prejudicial to the substantial of law during the course of the trial, which ruling and acts in the case were prejudicial to the substantial rights of the defendant, and that the verdict is contrary to the law and the evidence. We have observed that the transcript of the proceedings at the trial are not included in the bill of exceptions, and in the absence of the record of the testimony and the court's rulings on the admission of evidence, this court has nothing to review. No exception is shown to have been taken to the testimony received, and no error is assigned against the receipt of evidence or the court's instructions to the jury. We are therefore of the opinion that the defendant's assignment of error upon this ground is not well taken.

Defendant's last assignment of error is directed against the order of commitment, the material part of which reads:

"And the said John Kranendonk having, on the 25th day of May, 1931, more than three (3) days after the entry of said decree, appeared in open court, and having refused and neglected to secure the said bond, as provided in said decree, or to make any of the payments as provided in said decree, and it appearing to the court, after an examination of the said defendant in open court that the said defendant should be committed to the county jail of Weber county, there to remain until he shall comply with the decree of the court, or until otherwise discharged in due course of law. It is therefore ordered that the said defendant, John Kranendonk, be, and he is hereby committed to the county jail of Weber County, Utah, there to remain until he shall comply with the order of this court, or until otherwise discharged in due course of law."

The transcript contains the examination of the defendant as to his ability to comply with the judgment. The following testimony is all that was presented on that hearing:

"John Kranendonk, the defendant herein, being first duly sworn, testified as follows:

"Direct examination by Mr. Jones:

"Q. Your name is John Kranendonk? A. Yes, sir.

"Q. You are the defendant in the case of the State of Utah versus John Kranendonk? A. Yes.

"Q. Do you own any property? A. No, sir.

"Q. Any real property? A. No.

"Q. Do you own any personal property? A. No property at all.

"Q. Are you working at present? A. No, sir.

"Q. How long has it been since you worked? A. About a year.

"Q. What do you work at when you work? A. I worked at the Bigelow Hotel, in the pantry.

"Q. Have you tried to get work? A. Yes, sir.

"Q. Tried to get work at the Bigelow Hotel? A. Yes, sir.

"Q. Have you tried to get other work than that? A. Yes.

"Q. Have you asked for a job? A. Yes, sir.

"Q. And you have been unable to find work up to this time, have you? A. Yes, sir.

"Q. Have you attempted to get some one to go on your bond in this case now pending? A. Yes, sir.

"Q. Whom have you asked to go on your bond? A. I asked my father and Mr. Owen Bybee and some others that knew me well; they wouldn't go my bond.

"Q. Did you ask everybody that you could think of that would be apt to go on your bond to do so? A. Yes, sir.

"Q. And they have refused? A. They all refused.

"Q. Do you know of anyone else that you could ask? A. No, I don't. I don't know of anyone else.

"Q. You have asked them all. That is all.

"Cross-examination by Mr. Wilson:

"Q. You say you haven't worked for a year? A. Yes, sir.

"Q. Your last job was at the Bigelow? A. Yes, sir.

"Q. Aren't you an able-bodied man? A. Yes.

"Q. What is your occupation? A. Working in the pantry of the hotel.

"Q. Just an ordinary laborer in the pantry? A. That is all.

"Q. Have no training for a trade or occupation? A. No, sir.

"Q. Where else have you worked? A. You mean before I started in the hotel?

"Q. Yes, or since. A. Well, I have worked a little bit around once in a while when I could get work.

"Q. Where? A. Down in the Wilson Lane, on the ditch.

"Q. This spring? A. Yes, sir.

"Q. What does your father do? A. Farms.

"Q. He has a large farm, has he? A. No, sir.

"Q. Where is his farm? A. In Wilson Lane.

"Q. Can you get work from your father? A. He hasn't enough to keep himself busy.

"Q. You are a married man? A. Yes, sir.

"Q. Where do you live? A. In the Argyle Apartments.

"Q. You have lived for a year without any income, have you? A. Well, my wife works once in a while.

"Q. Has that been your only income? A. Besides what work I could get.

"Q. The last time you appeared in court you had a new suit on. Did you buy that? A. Well, I can't go around here without anything on.

"Q. Did you buy that? A. No, sir.

"Q. Who bought it? A....