State v. Probst

• Decision Date: 30 December 1927
• Docket Number: No. 5446.,5446.
• Citation: 216 N.W. 576,56 N.D. 316
• Parties: STATE v. PROBST.
• Court: North Dakota Supreme Court

56 N.D. 316

216 N.W. 576

STATE

v.PROBST.

No. 5446.

Supreme Court of North Dakota.

Dec. 12, 1927.

Rehearing Denied Dec. 30, 1927.

Syllabus by the Court.

In a proceeding to establish the paternity of an illegitimate child, the evidence is held sufficient to warrant the verdict of the jury.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Proceeding by the State against Ewald Probst to establish the paternity of an illegitimate child. From an order denying defendant's motion for judgment non obstante or for a new trial, defendant appeals. Affirmed.Burdick & Shaft, of Fargo, for appellant.

John C. Pollock, State's Atty., and James W. Pollock, Asst. State's Atty., both of Fargo, for the State.

PER CURIAM.

This is a proceeding to establish the paternity of an illegitimate child. The appeal is from an order denying the defendant's motion for judgment non obstante or for a new trial. The record presents as the sole question the sufficiency of the evidence. The evidence may be briefly stated as follows: One Meta Schultz, who had died prior to the trial of this action, on April 4, 1924, gave birth to an illegitimate child. The defendant testified that he had known Meta Schultz for a number of years, and had known her as a grown-up girl since 1921, and that they lived in the same neighborhood. In 1923 he was out of the state until the 11th of May, when he returned to Embden where both he and the girl lived. After that he saw her uptown several times; that five persons, including the defendant and Meta Schultz, went to a dance one night about the first part of June; that he saw her again on the 5th of July at another dance near town; that he was never out with her alone. He said he never had taken her to a Chautauqua entertainment at Chaffee, nor visited her at her home at any time; that he did not remember having written to her at any time or on July 3, but thereafter admitted writing the following letter:

“At Home, July 3rd.

My dear Friend: Just a note to ask you if it would be all right for me to call on you to-nite. Do you think you will want to go? Perhaps you can in some way let me know, can you? I will be on my way to Chaffee, and perhaps you will ride with me.

Excuse short notice but it is better than none.

Friend Ewald.”

The defendant said that he did not think the arrangement referred to in the letter ever materialized. He denied calling at the girl's home on the 31st of October just previous to his leaving for an indefinite period to be spent in a distant city, but remembered that he and the girl went from Embden to Fargo on the same train. There was no member of the girl's family at the station. In Fargo they went to the same hotel, where they occupied opposite rooms separated by a hall. He was expecting to leave about midnightthat night. He obtained a room at the hotel for the purpose of changing his clothes so that he would not have to wear his best clothes on a long journey. He testified that he told her that her...