State v. Muldoon
| Citation | 254 N.W. 475,64 N.D. 564 |
| Decision Date | 19 April 1934 |
| Docket Number | 6251 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Stutsman County Jansonius, J.
Reversed and new trial ordered.
Fredricks & Fredricks, for appellant.
It is improper, or even reversible error, for a court to overrule a motion for a new trial pro forma and without proper consideration. 29 Cyc. 1006; Campbell v. Ayres, 4 Iowa, 358; Penn v. Oglesby, 89 Ill. 110; Ex parte Russell, 13 Wall. 664; McIntyre v. McIntyre (Ga.) 47 S.E. 501; Richolson v. Freeman, 56 Kan. 463; Larabee v. Hall, 50 Kan. 311; Adams v Webster, 25 La.Ann. 113; Tracy v. Altmyer, 46 N.Y. 598; Tennessee R. Co. v. Lee, 95 Tenn. 388; Ranney v. St. Johnsbury R. Co. (Vt.) 32 A. 810.
The movent has a right to have his motion for a new trial considered upon its merits. Langston v. Southern Electric R. Co. (Mo.) 48 S.W. 835.
Loss of the trial record, or of documents and evidence that are important for a proper decision of the suit, imposes the necessity of a new trial. Cuyugan v. Agues, 19 Philippines, 379; Elliott v. State, 5 Okla. Crim. Rep. 63 113 P. 213.
A new trial sought upon the ground that the verdict is against the evidence should not be denied by a judge who did not sit at the trial, upon the ground that he is unable to determine just what evidence was offered at the trial. Crocker v. Crocker, 56 Mo. 180; St. Francis Mill Co. v. Sugg, 142 Mo. 364, 44 S.W. 249.
Where, without appellant's fault, the transcript on appeal is incomplete as not containing the evidence offered, the case will be remanded for a new trial. Watson v. Clare, 5 Mart. N.S. 100; Evins v. Murphy, 11 Rob. (La.) 477; Dolliole v. Azenia, 3 La. 359; Union Garment Co. v. Carver, 113 Mo. 602, 20 S.W. 1058; State v. Huggins, 126 N.C. 1055, 35 S.E. 606.
Where appellant is deprived of his bill of exceptions by default of the official stenographer, he is entitled to a new trial. Curran v. Wilcox, 10 Neb. 449, 6 N.W. 762; Holland v. Chicago, B. & Q. R. Co. 52 Neb. 100, 71 N.W. 989; Mathews v. Mulford, 53 Neb. 252, 73 N.W. 661; Richardson v. State, 15 Wyo. 465, 89 P. 1027; Barton v. Burbank, 119 La. 224, 43 So. 1014.
In a prosecution for bastardy, where the testimony of complainant shows that the first acts of intercourse with defendant was less than 252 days before birth of illegitimate child, the burden is upon the complainant to show by a preponderance of the evidence that the child alleged to have been begotten by such intercourse was a premature birth. Souchek v. Kaar, 11 N.W. 150; Masters v. Marsh, 19 Neb. 458, 27 N.W. 438; Sang v. Beers, 20 Neb. 366, 30 N.W. 258; Gillis v. State (Wis.) 238 N.W. 804.
Russell D. Chase, for respondent.
The determination of a motion is not always express but may be implied. 42 C.J. 511; Townsend v. Angellotti (Cal.) 62 P. 59; Clyde Mill. & Elevator Co. v. Buoy, 71 Kan. 293, 80 P. 591; Reid v. Filmore (Wyo.) 73 P. 849.
The entry of final judgment in a cause is in effect an overruling of all motions pending prior thereto in the case. 42 C.J. 511.
A judgment on a verdict disposes ipso facto of a motion to set aside the verdict or for a new trial. Ferris v. Commercial Nat. Bank (Ill.) 41 N.E. 1118.
The exact date on which a child is begotten is not material except as it bears upon the principal question which is whether or not the accused is the natural father of the child. State v. Peoples, 9 N.D. 146, 82 N.W. 749.
The credibility of the witnesses and the weight of testimony are for the jury. State v. Brandner, 21 N.D. 310, 130 N.W. 941; State v. Fuchs, 48 N.D. 730, 186 N.W. 753. See also State v. Banik, 21 N.D. 417, 131 N.W. 262; State v. Goetz, 21 N.D. 569, 131 N.W. 514; State v. Hiertz, 41 N.D. 55, 170 N.W. 118; State v. Probst, 56 N.D. 316, 216 N.W. 576.
Where there is a direct conflict between the complaining witness and the defendant on the facts, the judgment on the verdict must be affirmed. State v. Anderson, 58 N.D. 721, 227 N.W. 220.
This is an action to determine the parentage of a child born the 7th day of April, 1932. The mother of the child, who was 21 years of age at the time of the trial, testified that she first met the defendant the last of July, 1931 and that their first illicit sexual relation occurred in the first week of August, 1931. She does not remember the exact date but says it was in the first week of August, 1931. The defendant, as a witness in his own behalf, testified that there never was any illicit sexual relation between the mother of the child and himself at any time.
The case was submitted to the jury and a verdict was returned finding that the defendant was the father of the child, upon which judgment was entered and the defendant appeals.
It is the contention of the appellant that the evidence is insufficient to support the verdict; that upon the record the first illicit sexual act, if any, was in the first week in August, 1931, and the child was born on the 7th day of April 1932. Assuming that the illicit act occurred on the first day of the first week of August, 1931, the child was born 250 days thereafter, or thirty days short of the gestation period. There is no evidence to show a premature birth, although the child was born at a hospital with a doctor and nurses in charge and in the absence of evidence showing a premature birth the presumption is that it was natural and if a natural birth it was necessarily begot before the 1st of August, 1931.
"The burden is on the state to show that the defendant is the father of the (child), and is not on the defendant to establish his defense." 7 C.J. 987, § 112 and cases cited. Defendant cannot be convicted unless intercourse with the prosecutrix is shown within the period of gestation (unless the child is premature). 7 C.J. 995, § 129; Allred v. State, 151 Ala. 125, 44 So. 60; Sonnenberg v. State, 124 Wis. 124, 102 N.W. 233; Souchek v. Karr, 78 Neb. 488, 111 N.W. 150; Masters v. Marsh, 19 Neb. 458, 27 N.W. 438; 9 Current Law, 386; Sang v. Beers, 20 Neb. 365, 30 N.W. 258; Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382; Matteson v. People, 122 Ill.App. 66; Menn v. State, 132 Wis. 61, 112 N.W. 38.
This question was before this court in the case of State ex rel. Pepple v. Banik, 21 N.D. 417, 131 N.W. 262 and this court in reviewing the case said: On objection to these questions and upon the answers of the prosecuting witness the state based in part the hypothetical questions propounded to a physician. The prosecuting witness claimed that she and the defendant had had sexual intercourse for the first time on the 17th day of March, 1908. There was no error in overruling the objections to these questions, nor in permitting the physician to testify as to whether the children of the length and weight testified to by the prosecuting witness, conceived at the time alleged and born at the time admitted, were in fact premature. The prosecutrix testified that one of the children lived only twenty-one days; that each child was about a foot long, and weighed from 5 1/2 to 6 pounds; and the state had a right to assume these as facts, and then to ask the expert as to whether, in his opinion, the children were in fact prematurely born. Upon this evidence it was held that the following instructions were sufficient, namely: "'As the testimony of the complaint shows the birth of the children within 244 days of the alleged acts of intercourse with the defendant, the burden is upon the plaintiff to establish, by a fair preponderance of the evidence, that the children were a premature birth, and unless you believe from the evidence that the children were in fact of premature birth, then I charge you that your verdict must be in favor of the defendant.'"
In the case of State v. Peoples, 9 N.D. 146, 82 N.W. 749, "The court said to the jury, in substance, in its charge, that it was a matter of common knowledge that the shortest period of gestation was about 260 days; and applying this statement to defendant's testimony, the court further instructed the jury as follows: 'If you find that the defendant did not have sexual intercourse with the complaining witness between the 10th day of July and the 10th day of September, 1897, then you must find the defendant not guilty.'" The court said: "This is a proper charge, under the evidence."
In the case of Souchek v. Karr, 78 Neb. 488, 111 N.W. 150, at page 151, the Nebraska court said "It is prejudicial error for the trial court to refuse an instruction, which clearly, unequivocally and emphatically placed the burden upon the complainant of showing that her child was of premature birth, because her right of recovery against the defendant depends absolutely upon this fact." In that case the complainant's testimony, like the testimony of the complainant in the instant case, showed that the intercourse was outside of the ordinary period of gestation.
In the case of Ronan v. Dugan, 126 Mass. 176, the court said...
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