227 N.W. 220 | N.D. | 1929
This is an action to establish the paternity of a *723 child born to Emma Dahlvang, an unmarried woman, on the 26th day of March, 1928.
The case was tried to a jury and a verdict returned finding the defendant, George Anderson, to be the father of said child, and from an order denying a motion for a new trial the defendant appeals.
The defendant contends, that the court erred in overruling objections to the following testimony of the defendant under cross-examination:
Ques. "You disposed of all your property didn't you?"
Mr. Peterson. "Objected to as incompetent and immaterial and not within the issue." "Overruled."
Ques. "Turned your property over to your brother." Mr. Peterson, "May I have an objection to all this line of testimony it is improper cross-examination."
The court, "You may have it overruled."
Ques. "You turned it over to your brother?"
Ans. "Yes."
Ques. "You did that did you?"
Ans. "Last summer in May."
Ques. "But your bill of sale was not filed until Christmas?"
Ans. "He told me to file it when he heard about this trouble. No it wasn't filed until Christmas."
It is the contention of the appellant that this testimony does not tend to prove or disprove any issue in the case, but that it did prejudice the jury against the defendant.
The complaining witness testified that when she learned of her condition she spoke to the defendant about it one evening when he was at her home, and that she wrote him two letters.
There is no testimony that there was any consideration for the transfer, or any delivery of the property or that the bill of sale was ever delivered, but that the brother along about Christmas time, when he heard about the trouble, told the defendant to go and put the bill of sale on record.
In the case of Chaufty v. De Vries,
"I transferred part of my property to my wife. It was intended to be done long before."
Ques. "But you did it immediately after this accident didn't you?"
"Yes, sir."
In holding that this testimony was proper the Rhode Island court reviewed the authorities as follows:
"In Heneky v. Smith,
"In view of its character, and the circumstances under which it was executed, we think it was properly admitted. The jury might reasonably infer from this act of the appellant, in view of all its surroundings, that it was prompted by a consciousness on his part, that the shooting of the respondent was unjustifiable, and that he was legally liable for the damages occasioned by it. In this view, it would operate like an admission of liability, and be equally competent. `Admissions may be by acts, as well as by words.' 2 Wharton, Ev. § 1081; Pennsylvania R. Co. v. Henderson,
"In a recent case the supreme court of Michigan admitted such testimony as proper. The headnote sufficiently states the question before the court and the ruling:
`Where in an action for assault and battery, including ravishment, the evidence showed that on the day following the assault plaintiff informed her husband, who then sought and found defendant, and requested him to be at the husband's house that night, evidence that thereafter during the same afternoon defendant approached a third *725 person and asked him if he would go on defendant's bond, if desired, was admissible to indicate guilty knowledge.'"
"In this case the defendant had not told the intending bondsman what he wanted it given for, saying he would tell him later; nevertheless, the supreme court said:
`It was claimed by the plaintiff that it was fairly inferable from the sequence of facts that inquiry as to bonds was the result of his talk with plaintiff's husband, and tended to indicate guilty knowledge. We are not prepared to say that such evidence had no probative force, and do not find its admission reversible error.' Totten v. Totten (1912)
"In Harrod v. Bisson,
In the case of Myers v. Moore,
The defendant admits getting one letter from the complaining witness. He also admits, that after the trouble began his brother told him to put the bill of sale on file. If there had been no trouble, there would have been no bill of sale. There could be but one object in transferring this property, and that would be to defeat any judgment the complaining witness might recover against the defendant. We are of the opinion, that the evidence was admissible as an admission by act, and as tending to show a consciousness on his part of liability.
There is a direct conflict between the complaining witness and the defendant on the facts and the judgment on the verdict must be affirmed.
BIRDZELL, CHRISTIANSON, BURR, and NUESSLE, JJ., concur. *727