88 Neb. 392 | Neb. | 1911
On May 22, 1908, plaintiff filed a complaint before the county judge of .Boone county, charging that she was an unmarried woman, that 'she was then pregnant, with a bastard child, and that defendant was the father of such child. Defendant was held to the district court, where, upon trial duly had, judgment was rendered in favor of plaintiff, and defendant appeals.
Five errors are assigned for a reversal, which we will consider in the order in which they appear in defendant’s brief.
I. That the court erred in overruling defendant’s application for a continuance. From the statements made in defendant’s brief, it appears that the case stood for trial at 9 o’clock A. M. December 16. December 7 defendant filed in the office of the clerk a precipe for a svibpmna for witnesses, one of whom was Albert TJmlauf, The subpama was returned December 9, duly served upon the witness named, and with the statement that no demand was made by TJmlauf for witness fees. It appears from the' statement of counsel for defendant in his bri ef that when the case was called for trial, and before the voir dire examination of the jurors commenced, he made a statement to the court that a subpoena had been duly served upon the witness TJmlauf, that a return of service had been made, and “that on the evening of the 15th day of December defendant sent his hired man to the place where the witness TJmlauf was working in order to bring TJmlauf to the home of defendant so he could come with defendant to Albion December 16 to be a witness in this case. That TJmlauf stated to defendant’s hired man that he wooM finish corn husking and then come over to defendant & house and go with him to Albion December 16. ThWi the witness
2. “The plaintiff was allowed on her direct examination to state that she had never had intercourse with any male person other than the defendant.” It is argued that the effect of her statement was to elicit from the witness a purely collateral issue and that it could not make any difference under the issues joined whether plaintiff had -ever sustained illicit relations with any one other than defendant, unless it was during the period of gestation. We do not think the court erred in admitting this testimony. Defendant throughout the trial and in his statements prior to the trial had been associating plaintiff’s name with a number of other men in a manner calculated to create the impression that she had been guilty of illicit relations with some one or more of those men. In such a case we think it was perfectly proper for the court to permit plaintiff to answer generally that she had never sustained illicit relations with any man other than the defendant.
3. “Plaintiff was alloAved, in her direct examination, to
4. Under the fourth assignment it is contended that the court erred in permitting plaintiff to testify that defendant, at the time she lived in his home, objected to her having any company. It had been claimed by defendant that during that time he had exercised care over her and had objected to her keeping company with young men whom he considered objectionable. The testimony objected to was for the purpose of showing that he objected to her keeping company with any young man. We are unable to see any error in admitting it.
5. “On page 24 of the transcript, in plaintiff’s direct examination, she was allowed to testify that she was mistaken when' she testified she had intercourse On the 22d day of September instead of the 15th.” It seems that in the examination before the county judge she testified that her first intercourse with defendant was on September 22, and in the trial in the district court she fixed the date one week earlier, September 15. On cross-examination counsel for defendant sought to interrogate the witness as to the discrepancy in date between her testimony in the county court and in the district court, but upon objection of plaintiff was not permitted to do so. Counsel in his brief says: “The theory of the trial court in limiting the cross-examination was based on the case of Masters v. Marsh, 19 Neb. 458, which excluded cross-examination as to the different statements made in the .two courts. Witli all due respect to the court, the effect of the rule in the Masters case is to cut .off and curtail cross-examination.” We do not see how this could in any manner prejudice
No error in the giving or refusing of instructions is assigned in defendant’s brief, nor is there any assignment that the evidence received is insufficient to sustain the verdict, nor that the amount of the judgment is excessive. Defendant appears to have had a fair trial, and, finding no prejudicial error in the record, the judgment of the district court is
Affirmed.