State v. Sexton

Decision Date14 July 1897
Citation72 N.W. 84,10 S.D. 127
PartiesSTATE OF SOUTH DAKOTA, Defendant in error, v. EDWARD J. SEXTON, Plaintiff in error.
CourtSouth Dakota Supreme Court

EDWARD J. SEXTON, Plaintiff in error. South Dakota Supreme Court Error to Minnehaha County Court, SD Hon. W. A. Wilkes, Judge Affirmed A. B. Kittredge and Ballantyne, Attorneys for plaintiff in error. C. P. Bates and D. J. Conway Attorneys for defendant in error. Opinion filed July 14, 1897 (See 75 NW 895)


This proceeding based upon the bastardy act, was instituted and prosecuted in the name of the state, upon the sworn complaint of the mother of an illegitimate child; and a trial of the issues of fact to a jury resulted in a verdict in which it was found that the defendant is the father of said child, and upon which judgment was entered requiring the defendent to pay $200 into the county court for its support and maintenance for the first year of its existence, and $100 annually for 12 succeeding years thereafter, together with the costs of the action. A motion for a new trial was overruled, and the defendent brings this cause to this court for review on writ of error.

Upon the direct examination of Dr. Tufts, who was shown to possess the requisite qualifications of a medical expert, and after he had, in effect, testified that calculating from the last day of menstruation, 280 days is the average time from the day of conception to the day of the birth of a mature child, a table disclosing similar information contained in a standard medical work produced by the witness was offered and received in evidence on the part of plaintiff, over defendant’s objection that the same was immaterial.” The witness was further interrogated in part as follows:

“Q. Do you know what the records of the medical profession and medical authorities consider the lowest time at which a fully developed child can be born? State the time in days.

(Defendant’s counsel objected, as incompetent and immaterial. Objection is overruled. Defendant’s counsel excepted.)

A. In the tables that I have given, from 255 to 315 days. They are all supposed to be well developed, mature children.”

The admission of this evidence is assigned and urged as error, for which the case must be reversed. When it is disclosed that an expert has based an Opinion, expressed on direct examination, upon the recitals of a particular medical work, reference may in some instances be had thereto on cross examination, as a means of testing his knowledge, and determining the value of such opinion; but the weight of current authority is clearly against the admission of scientific books as evidence of an issuable fact which may be established by the testimony of an expert. 2 Rice Ev. 1254; 8 Enc. P1. Prac. 768. When properly objected to the hearsay character and uncertainty of a medical work, the author of which being neither sworn nor cross-examined, is sufficient to exclude the book and all detached portions thereof, such as the table before us; but the objection, as made in the court below, is too general and wholly insufficient to present any question on appeal. First Nat. Exch. Bank v. Sherman,(1897). As the answer to the above question, over a general objection, merely directed attention to the tables already in evidence, and to the introduction of which no valid objection was interposed, counsel for the defendant have no just cause to complain. Moreover, as the subject of inquiry is a matter of common knowledge, pertaining to the course of nature, of which courts will take judicial notice, no proof as to the ordinary period of gestation was necessary. I Rice, Ev. 20; Beck, Med, Jur. 356; 1 Whart. Ev. 331; Reyn. Steph. Ev. (3d Ed.) 77.

After translating the maxim, falsus in uno, falsus in omnibus,” the...

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