36 Neb. 412 | Neb. | 1893
This is a proceeding by which it is sought to charge the plaintiff in error with being the father of a bastard child of Letta Coughman. The complaint was filed in the county court of Gage county, the plaintiff in error was arrested, and, after examination before said court, was bound over to the district court. The case was docketed in said court, and the plaintiff in error pleaded that he was not guilty of the charge. There was a trial by jury, and a verdict of guilty. It was thereupon adjudged that he was the father of the said illegitimate child, and that he should pay to the mother for the future maintenance and support of the child the sum of $50 a year for the period of ten years. From which judgment the defendant below brings the case to this court for review by proceedings in error.
It is strenuously insisted that the verdict of the jury is not sustained by the evidence. The record shows that the prosecutrix is an unmarried woman, and lives with her father and mother; that she became the mother of a child on the 10th day of June, 1892; that at and prior to the time it is alleged the child was begotten, plaintiff in error was a boarder in her father’s family. She testified, both in the county court and in the district court, that plaintiff in error had sexual intercourse with her in her father’s house in Holmesville on Sunday, the 6th day of September, 1891, while her father and mother were at church; that she only had intercourse with him once, and never had anything to do with any other person. She testified positively that defendant below is the father of her child. Plaintiff in error was examined as a witness in his own behalf, and denied that he was guilty of the act charged. He also attempted to establish an alibi by calling several witnesses, who testified that on the 6th day of September,
It is urged that there is no proof that the child was born alive, or was living at the time of the trial. Counsel for plaintiff in error misconceive the force and effect of the testimony of the prosecutrix, as the following quotation from her testimony shows:
Q. 5. Have you ever been married?
A. No, sir.
Q. 6. You may state if you are acquainted with the defendant J. H. Dukehart.
A. Yes, sir.
Q. 7. You may state, Miss Coughman, whether you are the mother of a child!
A. Yes, sir.
Q. 8. State whether or not that child is an illegitimate child — bastard. (Pointing to a child then held in the arms of plaintiff.)
A. Yes, sir.
A. J. H. Dukehart.
Q. 10. This defendant sitting here?
A. Yes, sir.
Q. 11. When was the child born?
A. June, the 10th.
Q. 12. What year?
A. Eighteen hundred and ninety-two.
Q. 13. You may state, Miss Coughman, upon or about what date this child was begotten.
A. The first Sunday in September, as far as I can tell.
Q. 14. This September?
A. Eighteen hundred and ninety-one.
Q. 17. And this child was born in Gage county, Nebraska?
A. Yes, sir.
Q. 18. And begotten in that county?
A. Yes, sir.
Upon cross-examination to the question, “When was it you claim this child was begotten?” the witness answered, “ Last September, 1891; first Sunday in September, 1891.”
The foregoing is the only testimony in the bill of exceptions relating to the birth of the child, and we think was ample proof that the child in question was not only born alive, but was living at the time of the trial.
Complaint is made because the prosecutrix was not permitted to answer three certain questions propounded to her on cross-examination. The first one had reference to the size of plaintiff in error, the question being, “ he is a pretty small man.” It was objected to, as immaterial, irrelevant, and incompetent, but the court did not make a ruling thereon. We are unable to see the materiality of the inquiry; besides, Dukehart was in the court room duriug the trial, and at the request of his counsel he and the prosecutrix stood up together before the jury, so that.
It is claimed that the court erred in sustaining the objections of the plaintiff below to each of the following questions submitted to the witness John Culver, who was sworn for the plaintiff in error:
Q. 334. I will ask you if you remember writing Mr. Dukehart a letter on the 4th of September, 1891, requesting him to meet you in Blue Springs on Sunday, the 6th of September, 1891 ?
(Objected to, as immaterial, irrelevant, and incompetent. Sustained. Exception.)
Q. 335. Did you write him a letter at that time?
(Objected to, as immaterial, irrelevant, and incompetent. Sustained. Exception.)
The record fails to disclose the relevancy of the testimony sought to be elicited by these interrogatories; besides, error cannot be predicated upon the sustaining of the objections for the reason counsel for plaintiff in error made no statement to the trial court of what he expected to prove by the witness. (Masters v. Marsh, 19 Neb., 458; Mathews v. State, 19 Id., 330; Yates v Kinney, 25 Id., 120; Burns v. City of Fairmont, 28 Id., 866.) No reversible error having been pointed out in the record the judgment of the district court is
Affirmed.