State v. Weber

• Citation: 191 N.W. 610,49 N.D. 325
• Parties: STATE v. WEBER.
• Decision Date: 21 December 1922
• Court: United States State Supreme Court of North Dakota

49 N.D. 325

191 N.W. 610

STATE

v.WEBER.

Supreme Court of North Dakota.

Dec. 21, 1922.

Syllabus by the Court.

Where a new trial is demanded in a bastardy proceeding on the ground that the evidence is insufficient to sustain the verdict which declared the defendant to be the father of the child, and the trial court in denying the motion distinctly expresses the belief that the verdict is wrong, that the evidence in the case shows that there is a greater probability that a person other than the defendant (who has been referred to in the evidence) is the father of the child, and where the transcript of the evidence adduced upon the trial fully justifies the views thus expressed by the trial court, the order denying a new trial will be set aside and a new trial ordered.

Appeal from District Court, Bottineau County; Buttz, Judge.

Bastardy proceedings by the State against Arthur G. Weber. From a judgment for plaintiff and from an order denying motion for new trial, defendant appeals. Reversed.McGee & Goss, of Minot, for appellant.

J. J. Weeks, State's Atty., of Bottineau, for the State.

CHRISTIANSON, J.

This is a bastardy proceeding. The jury returned a verdict declaring the defendant to be the father of the child. Judgment was entered in conformity with the verdict. Defendant moved for a new trial upon the grounds, among others, of insufficiency of the evidence to justify the verdict and newly discovered evidence. The motion was denied, and the defendant has appealed from the judgment and from the order denying a new trial. After a careful consideration of the record transmitted to us on this appeal, we are of the opinion that the trial court erred in denying a new trial. In denying the motion for a new trial, the trial judge attached to, and filed with, the order, a memorandum opinion, wherein he stated:

“ The evidence is of so unsatisfactory a character and the results of the trial as a whole leaves my mind in such a state that if I had been a juror I could not have returned a verdict of guilty against the defendant. The defense was, to my mind, the most complete and satisfactory of any that I have ever heard in a case of this character, and the defendant's alibi was all but complete. It would seem more probable that the younger man, suggested by the defendant as the girl's lover, might be the father of the child, rather than the defendant. However, I am of the opinion that there are no errors of law in this case warranting the vacating of the judgment. The defendant has had two fair trials, and two different and disinterested sets of jurors have found him to be the father of the child in question. I feel that the judgment of one man ought not to intervene to overthrow that of the 24 citizens of the community who have concluded otherwise after hearing all of the facts.”

A careful examination of the evidence leads us to the conclusion that the views, thus expressed by the trial court which we have italicized are fully justified. Upon the preliminary examination held in the fall of 1917, the prosecutrix testified positively, and unequivocably, that she had sexual intercourse with the defendant, at her home, on August 15 and September 17, 1917; that she never had intercourse, either with the defendant, or with any other man, at any other time. The undisputed evidence is to the effect that the physicians who examined her at or about the time the prosecution was instituted stated that she must have become pregnant at some date earlier than August 15th, but that she, nevertheless, persisted in her contention that the two dates stated were the only ones on which she had had sexual intercourse with any one. She identified both of these dates positively; upon both occasions her parents were away and she at home alone. The prosecutrix admitted that she never deviated from this story until after the child was born. The child was born April 22, 1918. Upon the trial she claimed, however, that the defendant also had had sexual intercourse with her on July 24, 1917. She identified that date as being one on which a certain “pie social” was held at Gardena, in Bottineau county. According to her testimony, the defendant took her home from this party. Her testimony to that effect is uncorroborated, and is contradicted by the defendant and several witnesses, who, so far as this record discloses, are respectable and truthful men and women. The testimony of the prosecuting witness is also impeached by another witness, who testified that the prosecutrix made statements to her shortly after the party to the effect that a man other than the defendant took her home from such party. The only testimony that in any degree tends to corroborate the testimony of the prosecutrix is that of another girl, who testified that early in the evening she heard the defendant state to the prosecutrix that he would take her home. That witness, however, testified further that she did not remain until the party broke up, and that she did not know whether the defendant took the prosecutrix home.

The undisputed evidence also shows that the prosecutrix attended a dance, given by a neighbor, on July 9, 1917; that on this occasion she went with a man other than the defendant. The evidence shows that she and such other man spent part of the evening in a bedroom in the house alone; that their actions aroused the suspicions of many of those present, including the hostess; and three women, including the hostess, testified to the condition and appearance of the bed in the room after the prosecutrix and her companion had left it; and for the purposes of this opinion it is sufficient to say that the testimony so given tends to show that there was at least good reason for the belief, apparently entertained by these women, that the prosecutrix and her escort had had sexual intercourse on the bed in that room that evening. So far as the evidence shows, the women who gave the testimony regarding the actions of the prosecutrix and her escort and the appearance of the bed were disinterested and credible witnesses.

The prosecutrix testified that at the time the defendant had intercourse with her she did not know anything about the possible result of the sexual act; that she did not know how children were procreated, or, to use her own words, “I didn't know what was the cause of children, or anything at that time.” Yet, when asked how she knew that it was on the 15th of August that the defendant had intercourse with her, she answered that she knew because she marked the date on an almanac, and when asked on her preliminary examination why she did this, she answered: “Why did I? I wanted to keep a record, only because I wanted to keep a record of it.” When next asked: “Well, what did you want to do with the record?” she answered: “Wanted to keep it when I had anything to do with anybody.”

The record is quite lengthy (the transcript of the testimony contains some 426 pages), and it is impracticable, and would extend this opinion to a very great length, to set forth even a synopsis of all the testimony of the different witnesses. What has been set forth is to indicate that the record justifies the views expressed by the trial judge in his memorandum opinion.

One of the affidavits relating to newly discovered evidence has a direct bearing on the incident of July 24, 1917. The party who made the affidavit claims that the father of the complaining witness sought to induce him to testify that he saw the defendant and the prosecutrix on the evening of July 24, 1917, at or about the place where she claims that the act of sexual intercourse took place. Respondent invokes the well-settled rule that a motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict is addressed to the sound, judicial discretion of the trial court, and that the appellate court will not interfere unless an abuse of such discretion is shown. The rule is one of general application, and has been recognized by this court in all cases where it has been called upon to review the correctness of orders granting or denying new trials on the ground of insufficiency of the evidence or other discretionary ground. This does not mean, however, that the trial judge may refuse to exercise the judgment and discretion which the law contemplates shall be exercised by him. Neither does it mean that he is vested with arbitrary power, and may, if he desires, rule contrary to his own judgment. On the contrary, the terms of the rule invoked clearly imply: (1) That the trial court in deciding a motion for a new trial on such ground must exercise judgment and discretion, and that his ultimate decision as to whether a new trial shall or shall not be had is to be controlled by his own candid, sober judgment, on the merits of the particular question. He may not refuse to exercise judgment; nor may he refuse to do that which his judgment and conscience tells him is the right thing to do. (2) That there is a clear distinction between the duty of a trial court and the duty of an appellate court as regards the determination of such questions, and that the extent of inquiry of the appellate court is much more restricted than that of the trial court.

The reason for the distinction between the respective duties of a trial court and an appellate court, as concerns such motions, is not predicated alone upon the fact that the trial court is one of original, and the appellate court one of appellate, jurisdiction. While this proscribes the appellate court from ruling on a motion for a new trial in the first instance, it does not necessarily affect or limit the extent of inquiry on appeal. This is illustrated by the fact that where the motion for a new trial is decided by a judge other than the one who tried the case, the appellate court does not feel bound by his decision in the same degree as where the motion is decided by the judge who tried the case. Braithwaite v. Aiken, 2 N. D. 57, 63, 49 N....