State v. Southall

• Decision Date: 12 March 1924
• Parties: STATE v. SOUTHALL.
• Court: North Dakota Supreme Court

50 N.D. 723

197 N.W. 866

STATE

v.SOUTHALL.

Supreme Court of North Dakota.

March 12, 1924.

Syllabus by the Court.

In bastardy proceedings, the rules governing trials in civil cases apply; the state has the burden of proving the material facts by a preponderance of evidence.

Where the testimony tends to show that the defendant and another man carnally knew the complaining witness during the period of gestation, and where the complaining witness positively denies connection with a man other than the defendant, and testifies that the defendant is the only man who ever had carnal connection with her, it is held, for reasons stated in the opinion, that the findings of the trial court against the defendant on the issue of paternity have sufficient support in the evidence.

Additional Syllabus by Editorial Staff.

The object of a bastardy proceeding is not to punish the father, but to secure maintenance and education of the child.

The state is not required to prove paternity beyond a reasonable doubt, but only by a fair preponderance of evidence.

Appeal from District Court, La Moure County; Geo. M. McKenna, Judge.

Action by the State against Donald Southall. From a judgment for plaintiff and an order denying a motion for new trial, defendant appeals. Affirmed.Hutchinson & Lynch, of La Moure, for appellant.

E. F. Coyne, of La Moure, for the State.

JOHNSON, J.

This is a bastardy action. The defendant appeals from a judgment of the district court of La Moure county and from an order denying a motion for a new trial. The court made formal findings of fact.

The only question is as to the sufficiency of the evidence to support the finding of fact that the defendant was the father of the bastard child of one Weaver, the complaining witness in the case.

The salient facts are as follows: The defendant, age 21, admits that he carnally knew the complaining witness, age 26, on May 13, and again on May 20, or 23, 1922. On March 11, 1923, a child was born to complaining witness, the result, as she claims, of the amorous relations with this defendant of the preceding May. She asserts emphatically that never did any man, other than the defendant, know her, and that he is the father of her child. A physician called by the state, testified as to the usual period of gestation, and that a child born on March 11, 1923, might have been begotten on May 13 or May 20, or 23, 1922, although if intercourse took place the latter part of May or the first part of June, 1922, it would be more probable that conception took place on account of the intercourse on the latter date.

The defendant sought to prove that the complaining witness had intercourse with other men about the time when the incidents to which she testifies took place, which caused pregnancy. To show this, he called one Fenno, who admitted that on or about the last of May or first of June, 1922, he had been alone with the complaining witness in a certain store building after dark and perhaps with no lights turned on or burning, but refused, on the ground that it might incriminate him, to testify as to what took place. One Winegar was also called by the defendant. He showed, if not less modesty than Fenno, certainly less caution, for he testified that he carnally knew the complaining witness three times, in the latter part of May and the first part of June, 1922. He is entirely willing that any inferences the laws of life justify be drawn from the incidents detailed by him. The only tangible result of his extraordinary candor was an order to the sheriff from the bench to detain him on the charge of fornication. The complaining witness categorically denied the truth of Winegar's story, although she said that on one of the three occasions when she went out riding with him he developed symptoms of an extremely amatory nature, which, however, were so promptly and decisively squelched by her that whatever ambitions he may have entertained “died a-bornin'.” She likewise denied any improper connection with Fenno.

[2] Such, in broad outline, is the story unfolded in the record. It is not necessary to give the salacious details. The trial court expressly found that the defendant was the father of the child. The trial court was not obliged to accept the story of the witness Winegar as conclusive on the question of paternity; the complaining witness emphatically denied ever having had connection with any man other than the defendant. In a case like this, tried to the district court without a jury, and not properly triable de novo in the Supreme Court, the findings of the trial court come like legal conclusions and are presumed to be correct. The burden is on the appellant to show error, and a finding based on parol evidence “will not be disturbed unless clearly and unquestionably opposed to the preponderance of the testimony.” Jasper v. Hazen, 4 N. D. 1, 5, 58 N. W. 454, 23 L. R. A. 58. This rule is reaffirmed in Griffith v. Fox, 32 N. D. 650, 156 N. W. 239;Hartung v. Manning (N. D.) 196 N. W. 554. We are satisfied that this is the correct rule, certain expressions in other cases to the contrary notwithstanding. See Griffith v. Fox, supra, at page 654 of the official report. We think there is sufficient evidence to support the findings of the trial court and to justify the judgment entered pursuant thereto. See State v. Peoples, 9 N. D. 146, 82 N. W. 749;State v. Hiertz, 41 N. D. 55, 170 N. W. 118;State v. Fuchs, 48 N. D. 730, 186 N. W. 752.

It is contended by the appellant that the order of the trial court, directing the sheriff to hold the witness Winegar on the charge of fornication, conclusively shows that the court below believed his testimony; that it was therefore impossible for the complaining witness to say, with any degree of certainty or probability, whether defendant or Winegar was the father of the child; and that therefore the state failed to sustain the burden of proof, with the result that the evidence is insufficient to sustain the finding as to paternity and the judgment entered pursuant thereto. The trial court, doubtless moved to indignation by the testimony and demeanor of Winegar and perhaps other witnesses, quite severely castigated Winegar at the conclusion of the trial. Such remarks are made a part of the record, and it is urged by defendant that they indicate that the court believed that Winegar told the truth when he said he had committed fornication with the complaining...