State v. Kvenmoen
| Decision Date | 14 October 1930 |
| Citation | 232 N.W. 475,60 N.D. 60 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Cass County, Cole, J.
Reversed and new trial ordered.
Clair F. Brickner, for appellant.
"There is no special rule governing the sufficiency of evidence governing paternity." State v. Probst, 56 N.D 316, 216 N.W. 576.
"The broadest latitude should be allowed the defendant to fully cross-examine the relatrix on these matters." McAlpin v. Gremmels (S.D.) 197 N.W. 682.
Suspicious circumstances with other men is proper and competent evidence. State v. McKnight, 7 N.D. 444, 75 N.W 790.
"In bastardy proceedings, if the state proves the defendant's association with the prosecutrix at about the date of conception, he may show that about the same time she associated with other men." Kelly v. State, 135 Ala. 195, 32 So. 56, 91 Am. St. Rep. 25.
"In bastardy proceedings, where the only question is that of paternity, unchaste conduct of the woman with a man other than the defendant may be shown." State v. Karver (Iowa) 21 N.W. 161; State v. Humphrey (Wis.) 47 N.W 836.
John C. Pollock, for respondent.
The credibility of witnesses is solely a question for the jury. State v. Brander, 21 N.D. 310, 130 N.W. 941; State v. Wisnewski, 13 N.D. 649, 102 N.W. 883; Jensen v. Clausen, 34 N.D. 637, 159 N.W. 30; Gunder v. Feeland, 51 N.D. 784, 200 N.W. 909; Commercial Secur. Co. v. Jack, 29 N.D. 67, 150 N.W. 460; Livingston v. Holt, 38 N.D. 556, 165 N.W. 975.
The complaining witness charges the defendant with being the father of her child. The jury sustained the charge, an order for judgment and judgment were entered thereunder, and the defendant appeals.
The child was born in the House of Mercy on January 27, 1929. The superintendent, who had oversight of the House of Mercy said the child was normal, was fully developed though it weighed but four pounds when born, and that she had ample opportunity for observation as seventy babies per year are born in that Home. The only doctor who testified stated the normal period of gestation was from two hundred seventy-five to two hundred eighty days and that it was possible for a child to be born in a gestation period of two hundred sixty-one days "and appear normal at birth."
The complaint was not made until the 8th of April, 1929, and the preliminary examination was held April 12th.
There are sixteen specifications of error, eight of them dealing with the claim that the court unduly limited the cross-examination of the complaining witness, and prevented the defendant from offering proof to show that on or about the time of conception the complaining witness was in the company of others under such circumstances as would justify the jury in finding that others had intercourse with the complainant at that time.
In the district court complainant said the first time she met defendant "was about the last of April" 1928. She met him again two days later and a third time "a couple of weeks" thereafter and at this third meeting had intercourse with him, fixing the date as May 10th. She testified to three acts of intercourse in all, the second in June and the last in September. At the preliminary examination she testified to three acts -- first in June, another in June and one about the first of July. In connection with this part of the examination the defendant offered to prove on cross-examination of the complaining witness "that during the month of May she was at a house party with (naming two men) and an unknown person and these persons were the only persons present in said house and that they stayed at such house until the early morning hours;" and "that the complaining witness during the month of May was out with one in a Chrysler automobile from eight-thirty p.m. until the hour of one-thirty a.m." During the cross-examination of the complaining witness, defendant asked her: "And didn't take you out riding in his automobile and you stayed out until one o'clock at night with along about the time you have testified that you had intercourse with Douglas Kvenmoen?" The state objected on the ground that it was not proper cross-examination and that it would be proper "if they can bring the persons who will admit it." The court sustained the objection.
There were other offers of proof along the same lines. For example, she was asked "Isn't it a fact that during the month of May you and your sister stayed and slept all night in the Burrell Apartments in company with two men?" She denied this and then she was asked whether she had not told a Mr. B. that in company with her sister she had stayed "all night with two men," at the place indicated. On objection the court ruled this out also. The defendant then offered to prove that this witness with "her sister occupied the same room and stayed at the Burrell Apartments during May, 1928 with two men." This offer of proof was objected to by the state and disposed of by the court with the remark:
At the preliminary examination the complaining witness stated that her first intercourse with the defendant was on June 10 1928. She testified that he had called for her in a "little red roadster;" which she thought was an Oldsmobile; that they went out riding in this car and that the first intercourse took place therein. On the trial in the district court it developed that this red Oldsmobile roadster was purchased from the J. & L. Motor Company of Fargo. The Motor Company had sold a Nash car to a man in Lake Park, Minnesota, and taken this Oldsmobile in trade, and a member of the Motor Company brought the Oldsmobile from Minnesota. It was then sold to the defendant on his order dated June 15; but not delivered for about a week. At this time it was black, but the color was changed to red before delivery. There is nothing in the testimony which contradicts the record in this transaction. In addition the defendant and his father testify this is the only car defendant ever had, and it was bought for the defendant by his father. The father had owned a car for several years, including a black delivery truck -- a Ford -- which his boys drove. The defendant says this testimony shows conclusively the complaining witness was wrong when she stated intercourse took place June 10th or at any time. The defendant admits that he took the complaining witness for a ride in the car about the middle of July but denies any intercourse whatever with her at any time. On the trial in the district court the complaining witness changed her testimony as to time and said the first intercourse took place in May in the red roadster which she thought was an Oldsmobile car, and that on June 4, 1928, she knew she was pregnant saying: "Yes, I did; well I wasn't positive." that some one told her that the date of the birth of the child was too soon for the date she gave as the date of intercourse and that therefore she knew she would have to change her testimony and "put it back in April or May," -- the specific question addressed to her being, ...
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