62 Neb. 368 | Neb. | 1901
Walter Erickson, who was defendant-below, is seeking in this court the reversal of a judgment of affiliation rendered against him in a proceeding under the bastardy act.
Another assignment of error challenges a ruling of the court refusing to permit the defendant to shoAV by cross-examination of the complainant that she was Avith other men under suspicious circumstances about ten months before her child Avas born. It is, of course, a rule everyAAdiere recognized that in prosecutions for bastardy, evidence is admissible to shoAV that the complainant had sexual intercourse with men other than the defendant about the time she became pregnant (Burris v. Court, 34 Nebr., 187; Stoppert v. Nierle, 45 Nebr., 105) ; but the record before us does not disclose any violation of this rule. The court, it is true, struck out the name of one of the young men with Avhom Miss Schmill attended a dance and stayed out all night, but the main fact remained in the record and Avas considered by the jury. We are not able to see any possible prejudice in the order granting the motion to strike. But if the evidence excluded from the jury were material, the defendant has no just ground of complaint, for the events AAdiich he claims throw doubt on the paternity of the child, with whose maintenance he stands charged, occurred outside the normal period of gestation; and when the court made its ruling it Avas not advised that the period betAveen conception and birth is, in exceptional cases, as great as ten months. While there is no absolute rule upon the subject, by general consent,
Eddy v. Gray, 4 Allen [Mass.], 435, was a case in which the complainant’s child was born August 1, 1860. The court, over objection, admitted evidence of circumstances tending to show illicit intercourse with men other than, the defendant about the last of September or first of October, 1859. The admission of this evidence, without proof that the period of gestation was prolonged beyond the usual duration according to the common and natural course of life, was held to-be reversible error. This decision was cited with approval in Ronan v. Dugan, 126 Mass., 176, and in Easdale v. Reynolds, 143 Mass., 126. The evidence taken from the jury had no apparent relevancy at the time the motion to strike it out Avas sustained. The ruling Avas not erroneous when made, and it did not become so by the subsequent reception of evidence tending to prove that there are cases in Avhich more than ten calendar months have intervened betAveen impregnation and delivery. For the reason just stated the defendant’s offers to prove Avere properly rejected. And they Avere properly rejected for'other reasons. They embraced some matters which were clearly irreleArant in any view of the case; and they were not covered by any questions propounded to the Witness who was being examined.
Complaint is made of the instructions with respect to the credibility of witnesses and the preponderance of proof. It may be conceded that these instructions did not direct the attention of the jury to all the matters proper to be considered in determining the question which they were called upon to decide, but that, in our opinion, is not a fatal fault. If the defendant was not satisfied with either of the instructions given he was at liberty to tender a better one. If he desired elaboration or amplification he bad only to ask for it.
. It is contended that the evidence does not sustain the finding of the jury; hut, from a careful reading of the bill of exceptions, we are well satisfied that it does. The statement of counsel for defendant, that the story of the complainant contradicts, and is opposed to, all the experience of mankind, must be regarded, in view of the verdict and the approval of it by the learned trial judge, as too broad a generalization.
The petition in error contains no other specifications that can be considered. The judgment is
Affirmed.