State v. Rudy
| Decision Date | 30 July 1932 |
| Docket Number | 6066 |
| Citation | 244 N.W. 28,62 N.D. 403 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Emmons County Hutchinson, J. Action under the Illegitimacy Act (Laws 1923, chap. 165, §§ 10,500a1-10,500a37, 1925 Supplement) against Gilbert Rudy. From a judgment for the plaintiff and from an order denying his motion for a new trial, defendant appeals.
Affirmed.
William Langer, for appellant.
" . . where the evidence is conflicting as to whether the person charged in a bastardy case is the father of the bastard child, evidence of association with other men than the defendant charged about the time of probable conception under suspicious circumstances of the character referred in the testimony offered and excluded in this action, is admissible, and it is error to exclude it." De Mund v. State (Wis.) 166 N.W. 328; Guy v. State (Ala.) 102 So. 243; Walker v. State, 165 Ind 94, 74 N.E. 614; State v. Kvenmoen, 60 N.D. 60, 232 N.W. 475; State v. McKnight, 7 N.D. 444, 75 N.W. 790.
Testimony in bastardy cases must be direct and uncontradictory in its nature and free from inherent infirmities seriously affecting its credulity. State v. Smith (Mo.) 259 S.W. 506; La Ferra v. Watts (Juv. Ct. of N.J., Essex County) 148 A. 180; Public Charity v. Lotsky, 177 N.Y.S. 130; State v. Ahrens, 173 Minn. 294, 217 N.W. 118.
Chas. Coventry and T. A. Thompson, for respondent.
Where a defendant charged with the paternity of a child seeks to show intercourse with others as an independent fact, it is sufficient if intercourse be proven at any time within the period when conception might have resulted from it. Weisser v. Preszler, ante, 107, 241 N.W. 505; State v. Brunette, 28 N.D. 539, 150 N.W. 271.
This is an action brought under the Illegitimacy Act (Laws 1923, chap. 165; §§ 10,500a1-10,500a37, 1925 Supplement) to establish the paternity of a child born out of wedlock. The case was tried to a jury and resulted in a verdict finding the defendant to be the father of the child. Judgment was entered pursuant to the verdict. The defendant moved for a new trial; the motion was denied and he has appealed from the judgment and from the order denying a new trial.
The errors assigned on the appeal resolve themselves into two main propositions: (1) alleged errors in rulings on evidence; and (2) whether the evidence is sufficient to sustain the verdict.
The facts necessary to a consideration of the errors assigned are substantially as follows: On March 22, 1931, one Annie Jacobson, an unmarried woman, gave birth to a female child. The day before the child was born, to-wit, on March 21, 1931, Annie Jacobson signed and swore to a complaint charging the defendant herein with being the father of the child with which she was then pregnant and which was born the following day.
Annie Jacobson died on April 17, 1931, before the defendant had been apprehended under the warrant issued upon the complaint. Later the action was continued by the child upon substitution made in accordance with the provisions of the statute. Laws 1923, chap. 165, § 6; § 10,500a17, 1925 Supplement. A preliminary hearing was had at which witnesses appeared and testified. After the hearing the defendant was held to answer and in due time the case came on for trial, and was tried, in the district court of Emmons County, before a jury. The defendant denied the paternity of the child. As said, the jury returned a verdict finding the defendant to be the father of the child.
The evidence discloses that the Rudy and Jacobson families were neighbors; that the defendant and Annie Jacobson had been acquainted for a number of years and that during the spring and summer of 1930 they attended various social activities, such as dances and picnics, together.
Annie's sister Helen testified that on May 10, 1930, she, her sister Annie, the defendant, and a girl named Madge Fitch, returned from a dance about four o'clock in the morning in a car driven by the defendant Rudy; that she and Madge went into the house; that the defendant Rudy drove the car into the garage and that he and Annie Jacobson remained out there for some time. She also testified that on or about June 15th, 1930, she, the defendant, and Annie Jacobson attended a dance at one Harts; that after the dance, the defendant, Annie Jacobson, Sidney Tracy and Madge Fitch went home in Tracy's car. Madge Fitch corroborated this and testified that on this occasion they drove to Rudy's home and went into the house; that the defendant Rudy and Annie Jacobson went into a bedroom, closed the door and remained there for some time leaving Tracy and Miss Fitch sitting in the kitchen; that shortly after the defendant Rudy and Annie Jacobson came out of the room, Tracy took Annie Jacobson and Miss Fitch to their home. The undisputed evidence shows that in going to Rudy's home on this occasion they passed the home of Annie Jacobson and that in order to bring the girls back to their home an extra trip of some five miles became necessary. The defendant admitted the incident, but denied that he and Annie Jacobson were in the bedroom with the door closed. The defendant, Rudy, also denied that he upon that occasion or at any other time had any illicit relations with Annie Jacobson.
Annie Jacobson's sister Helen also testified to an incident that occurred at another dance at Harts, June 28th or 29th, 1930, during which the defendant and Annie Jacobson absented themselves from the hall where the dance was going on, and the description she gave of her sister's appearance on their return to the hall (which we deem it unnecessary to detail) was, to say the least, such as to arouse a strong suspicion that their relations and activities had not been wholly Platonic.
There was also testimony of other incidents tending to show that the defendant had sustained intimate relations with Annie Jacobson.
The undisputed evidence shows that on March 21, 1931, Annie Jacobson's mother and Annie Jacobson came to see the defendant. At this time a conversation was had between Annie Jacobson's mother and the defendant. There is a conflict as to what was said; but the defendant admits that at that time Annie Jacobson's mother said to him: "I suppose you know what I came to see you about." That she further asked him if he would marry Annie "to give the child a name." Annie Jacobson's mother...
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