State v. Wiebke
| Decision Date | 22 December 1922 |
| Docket Number | 23,069 |
| Citation | 191 N.W. 249,154 Minn. 61 |
| Parties | STATE v. HERBERT WIEBKE |
| Court | Minnesota Supreme Court |
Prosecution in bastardy, changed by consent of parties and order of court from Houston to Fillmore county. The case was tried before Meighen, J., and a jury which found defendant guilty. Defendant's motion for a new trial was denied. From the judgment entered on the verdict and from an order of commitment upon his failure to pay the costs of prosecution defendant appealed. Modified and affirmed.
Verdict sustained by evidence.
1. The evidence sufficiently sustains the verdict that defendant was the father of the illegitimate child of the prosecuting witness, an unmarried woman.
Rulings of court sustained.
2. There were no errors in the rulings on the trial.
New trial not warranted.
3. The alleged misconduct of counsel was not of a character to justify a new trial.
New trial not warranted -- inadvertent error in charge.
4. The charge of the court was in the main correct and clear, and a slight verbal defect to which no attention was called, when at the close the court inquired of counsel whether any errors were inadvertently made, does not warrant a new trial.
Fees of medical expert.
5. It was within the trial court's discretion to allow expert fees for a physician who in part of his testimony was called upon to give his opinion as a medical expert.
Assignment of error.
6. No assignment of error questions the amount of the judgment in favor of the mother.
Construction of 1921 Act.
7. No change was made by chapter 489, Laws 1921, in section 3218, G.S. 1913, as left by the amendment of chapter 210, Laws 1917, except as to procedure and remedy. No additional burden was laid upon the father of a bastard.
Costs allowed to county.
8. The recovery of costs was properly awarded to the county where the trial was instituted.
Imprisonment for costs not warranted by statute.
9. The statute does not authorize the enforcement of the payment of costs by imprisonment as was done by the judgment in this case.
Gray & Thompson and William S. Hart, for appellant.
Duxbury & Duxbury, for respondent.
Clifford L. Hilton, Attorney General, and Albert F. Pratt, Assistant Attorney General, filed a brief as amici curiae.
Defendant was found guilty in a bastardy proceeding, and he appeals from the judgment.
Alma Wiemerslage, an unmarried woman, gave birth to a child October 14, 1918. She charged defendant with being its father, claiming that the first illicit relations with him occurred shortly after the middle of February, 1918, while she was working for an uncle. Defendant admitted such relations both before and after the birth of the child, but insists that they did not begin until the last part of April, 1918. The medical testimony is conclusive that a child born in the middle of October could live but a few hours, if conceived in April previous. Alma testified that the first time she ever was alone with defendant, Herbert Wiebke, was shortly after the middle of February. They had attended the same church and parochial school and had met at dances previously. On the occasion in February he came to her uncle's home in a Ford touring car, turned around in front of the house and stopped. She went out, and was invited to take a ride. She accepted, went back into the house for her wraps. After a short ride she was brought back. In about a week or so, he returned of an evening and she went out riding again. At this second ride she claims the first act of intercourse took place in the back seat of the car. From this time on he came every week or two, according to her testimony, in the same car, driving up in front of her uncle's home, she going out each time for a ride, and on nearly every occasion sustaining illicit relations. Not until in April did he ever go into her uncle's home, nor till then did any one of the three or four adult inmates thereof ever see or hear of him or his auto. Nor were they or any of them called upon to testify that they had seen defendant or the auto near there or noticed any evidence of an auto having been around, except the uncle and a nurse, and that related solely to the time in April when defendant admitted he was in the house.
The testimony is almost overwhelming that the roads were in such condition that travel by auto was out of the question between February 13 and March 24. The little village of Eitzen was located about midway on the road between the places where Alma and Herbert lived at that time; he living about 3 1/2 miles north of the village and she a little farther southeast thereof. No witness was called who had seen Herbert in an auto after February 1 and prior to March 24, 1918. He and his brothers, sister, a hired girl and others testified that during that period neither Herbert's Ford nor his brother's Velie was out of the places where stored for the winter on the farm, and that the tires of the Ford were deflated, and so kept until March 24 when they were pumped up, and the car taken out and used. As against this there is some testimony from Alma's two brothers-in-law, that, on two or three occasions during the time in question, autos had been operated near the locality mentioned. The evidence took such a turn that, unless defendant came to the home of Alma's uncle in February, or the first half of March and took her out in a Ford auto, there was no basis for finding him the father of the child. The performances in and with a Ford, according to the verdicts of some juries, have been truly remarkable, but a Ford is not noiseless. It is passing strange that with all the times this Ford drove up to the home of Alma's uncle and turned around, stopped and started in front of the house, with headlights burning, none but Alma knew it was there, and none knew that she went out for rides therein, nor did any one notice the tracks of the machine. However, all these matters and many other indications in the evidence which go to discredit Alma's story, were for the jury and we are not warranted in setting up our judgment as to facts against the verdict of the jury approved by a learned and painstaking trial judge.
Thus entertaining misgivings of the justice of the verdict, we have read the unabridged record and examined the errors assigned in respect to the trial with care to see if a new trial could be granted. Complaints are made as to numerous rulings upon the reception and exclusion of testimony. But we find none upon which to predicate reversible error. In many instances the exclusion of an answer to some question worked no prejudice, for it turns out that the same was subsequently received. For instance, defendant was not permitted to testify what he was told by a doctor consulted as to whether the child could live if conceived in April; but thereafter the doctor testified to what he told defendant, and defendant did testify that he had no relations with Alma after receiving this information. That the court restricted testimony as to conditions of the roads for autos to a territory within 25 miles of the homes of these parties cannot be called an abuse of discretion. And certainly as to number of witnesses upon this collateral issue, it cannot be successfully claimed that the court was not more than liberal.
Misconduct of counsel for the prosecution is charged. There was the usual uncalled for side talk across the table. The attorneys for both parties offended somewhat in this respect, but we can find nothing of sufficient import to mention. Prior to this trial, the prosecution had, in the opinion of defendant, indulged in rather strong arm methods, which methods, however, could have no bearing on the issue to be tried. But defendant's counsel evidently desired to place these matters before the jury to enlist sympathy for his client. Although the matter was wholly irrelevant and immaterial, the prosecution consented and everything relating to an attempt to force a settlement under duress and the conduct of a prior prosecution went in. Surely, defendant cannot on this appeal urge errors in prior proceedings whether in or out of court, nor complain of things he needlessly laid before the jury.
There was testimony that the child was prematurely born. Such was the opinion of the attending physician based upon certain physical indications present. And, after referring to the normal period of gestation, the court charged:
Request No. 1. "If you find from the preponderance of the evidence that the first occasion when defendant, Herbert Wiebke, and Alma Wiemerslage were alone or had opportunity of having sexual intercourse was about the middle of April, 1918, as claimed by the defendant, then it would be your duty to find the defendant not guilty and you should return a verdict of not guilty."
It is claimed that the first part of the quotation from the charge was misleading, and, at least, partially took away the force of defendant's request...
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