State v. Stevens

• Decision Date: 08 March 1968
• Docket Number: No. 40674,40674
• Citation: 157 N.W.2d 52,279 Minn. 390
• Parties: STATE of Minnesota, Respondent, v. Jerome STEVENS, Appellant.
• Court: Minnesota Supreme Court

Page 52

157 N.W.2d 52

279 Minn. 390

STATE of Minnesota, Respondent, v. Jerome STEVENS, Appellant.

No. 40674.

Supreme Court of Minnesota.

March 8, 1968.

Syllabus by the Court

1. Although the complaint in a paternity action appears to be criminal in form, it is well established that such proceedings are civil in nature and that the state is required to establish paternity only by a fair preponderance of the evidence.

2. While there are numerous inconsistencies in the prosecutrix' testimony in the instant case, it is not uncorroborated or improbable. Her testimony with respect to an act of intercourse in the latter part of May 1965, when the child might well have been conceived according to medical testimony, is both corroborated and probable.

3. Since a part of the prosecutrix' testimony was impeached by her own testimony on redirect and by that of a disinterested witness, the credibility of her testimony was brought into question. The general rule is, however, that the credibility of a witness is determined by the jury.

King & Flora, Long Prairie, for appellant.

Robert C. Swenson, Co. Atty., Alexandria, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, ROGOSHESKE, and PETERSON, JJ.

OPINION

NELSON, Justice.

Appeal from an order of the District Court of Douglas County denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

Defendant, Jerome Stevens, was found guilty by a jury on October 12, 1966, of being the father of an illegitimate child born to one Kathleen Walberg, prosecutrix herein.

The prosecutrix and defendant worked at a nursing home in the Twin Cities area. Both were in their late teens at the time the child was conceived. Both admitted to having intercourse on two separate occasions and are in agreement as to where the acts occurred. The conflict in the testimony of the prosecutrix and defendant is with respect to when the acts of intercourse took place.

Initially the prosecutrix testified that the first act of intercourse took place in late March or early April 1965, and that the second act occurred around May 20, 1965. Her later testimony indicated that the first occurrence must have been in early May. Defendant contends that the first act occurred on May 17 and the second on June 18, 1965. The prosecutrix testified that her last menstrual period was in the middle of May. She also testified that she did not have intercourse with any man other than defendant from February to July of 1965. However, at a later point in the trial, the state reopened its case and the prosecutrix testified that she had had intercourse with a fiance of one of her girl friends on or about July 17, 1965.

The doctor who delivered the child testified that the child was delivered after a full-term pregnancy, or about 270 days from the date of conception. He also testified that if the prosecutrix had intercourse in May 1965 after her menstrual period, then the child was probably conceived at that time, but that if the intercourse occurred before or during the menstrual period, then the chance that the act would cause conception was very unlikely. The jury found defendant to be the father of the child. The issue is whether the evidence sustains the verdict.

1. Although the complaint in a paternity action appears to be criminal in form, it is well established that such proceedings are civil in nature and that the state is required to establish paternity only by a fair preponderance of the evidence. State v. Becker, 231 Minn. 174, 42 N.W.2d 704; State v. E.A.H., 246 Minn. 299, 75 N.W.2d 195.

2. Defendant contends that the prosecutrix' account of when and by whom the child was conceived has been so thoroughly impeached that the evidence does not sustain the verdict of guilty. Defendant refers to numerous examples, which are confirmed by the record, of inconsistencies and, in one instance, false testimony on the prosecutrix' part. Two examples will suffice: The prosecutrix testified that she had not had intercourse with one Neil Hickel when he and his fiancee stayed at her apartment in June 1965. The court later permitted the state to reopen its case and the prosecutrix did admit she had had intercourse with Hickel on that occasion, although she said it was in July rather than June. She also testified that the first act with defendant was in late March or early April and that defendant had been working at the nursing home prior to that time. However, the testimony of defendant's former employer indicates that defendant did not leave his employment until April 20, 1965, at which time he left for employment at the nursing home.

In State v. Drescher, 219 Minn. 146, 17 N.W.2d 160, the prosecutrix alleged that the defendant was the father of her child and that the act causing conception had occurred in defendant's bedroom after a party celebrating his silver wedding anniversary. She testified that it had occurred while his wife had gone out of their farm home to look after her chickens at about midnight or 1 o'clock. Defendant in that case denied having intercourse with the prosecutrix. The court there said (219 Minn. 150, 17 N.W.2d 162):

'Under all the circumstances under which the intercourse is alleged to have taken place, it is very clear that a verdict resting alone upon the uncorroborated statements of the girl should not be permitted to stand, in view of the unconvincing character of her testimony.

'Her improbable, contradictory, and inconsistent testimony is so manifestly and palpably contrary to the great weight of the evidence that we must conclude that not only has the state failed to establish the paternity of (the) child against the defendant by a preponderance of evidence, but that the record demonstrates that the trial court should, in the exercise of its discretion in the furtherance of substantial justice, have granted a new trial.'

Granting that there are numerous inconsistencies in the prosecutrix' testimony in the instant case, it is not uncorroborated or improbable as the testimony was in the Drescher case. Both the prosecutrix and defendant admit to two acts of intercourse. Both admit that one of the acts took place in the latter part of May 1965 when the child might...