State v. Saidell

• Decision Date: 16 March 1900
• Citation: 70 N.H. 174,46 A. 1083
• Parties: STATE (O'BRIEN, Complainant) v. SAIDELL.
• Court: New Hampshire Supreme Court

46 A. 1083

70 N.H. 174

STATE (O'BRIEN, Complainant)

v. SAIDELL.

Supreme Court of New Hampshire. Merrimack.

March 16, 1900.

Exceptions from Merrimack county.

Action by the state, on complaint of Eva O'Brien, against Morris Saidell, to charge defendant with the support of a bastard child. From a Judgment in favor of the state, defendant excepts. Exceptions overruled.

(1) Subject to the defendant's exception, a witness testified that the defendant is a Jew. The child was exhibited to the jury, and they were instructed, subject to exception, as follows: "The fact that the defendant is a Jew must not be allowed to prejudice him in the eyes of the Jury. There is no more reason for finding a verdict against him because he is a Jew than for deciding against the complainant because she bears an Irish name. The nationality of the defendant is to be considered only so far as the appearance in the child of characteristics peculiar to that race, together with the lack of evidence tending to show connection of the complainant with any other person of that race, leads to the inference that the defendant is the father of the child." (2) The complainant's testimony tended to prove that the child was begotton at Penacook on a day when her mother had gone with other married women upon a sleigh ride to Concord. A witness for the plaintiff testified as to the sleigh ride, and that she had refreshed her memory by looking at a newspaper containing an article relating thereto. On cross-examination, counsel inquired regarding the contents of the article. On redirect examination the witness read the article, subject to exception. It was as follows: "The married women took a sleigh ride to Concord to-day." It was not disputed that the ride occurred February 24th. (3) Upon cross-examination of witnesses for the plaintiff, the complainant's character for chastity was called in question. Subject to the defendant's exception, they testified that they had never known anything against her. (4) The plaintiff inquired of a witness if he had testified before the grand jury. He answered, "Yes." The defendant excepted. The plaintiff withdrew the question, and the court instructed the jury to disregard the testimony, and found that they did so. (5) Two witnesses testified that the defendant had offered them bribes to testify falsely that they had been intimate with the complainant. On cross-examination they were asked if they had told Isaac Saidell, the defendant's brother, that they had been intimate with the complainant, and if Isaac did not talk as though he thought it was the fact. They testified that they did not remember how Isaac talked. On redirect examination they gave, subject to the defendant's exception, Isaac's reply to their statement that they had not been intimate with the complainant. The defendant was not present at the time of this conversation. (6) The father of the complainant was asked by the defendant whether the complainant had on February 24th, or during the subsequent stay of the defendant at her father's house, or before the complaint was made on which the defendant was arrested, complained to him against the defendant, or told him who was the father of the child. On redirect examination the plaintiff inquired whether the complainant, as soon as her condition was discovered, told him who was the father of the child. The witness replied: "Yes; Morris." The defendant excepted to the answer. (7) Upon crosa-examination the defendant inquired how the preliminary examination before the police court was conducted, and whether the Judge had not acted as counsel for the complainant. Upon redirect examination the witness testified that the hearing was conducted regularly, —like any hearing before the police court The defendant excepted. (8) For the purpose of contradicting her, the defendant read several questions and answers of the complainant's deposition. Subject to the defendant's exception, the plaintiff then read the rest of the deposition, claiming that it all tended to explain the part put in evidence by the defendant. The court did not understand that the defendant insisted upon his exception, and is unable to state what questions and answers he read.

Sargent & Niles, for plaintiff. Martin & Howe, for defendant.

PEASLEE, J.1. The comparison of the child with the defendant as an individual, or with his race, was properly allowed. "Under the well-established...