State v. Dachtler, 179 N.W. 655

State v. Dachtler

179 N.W. 655 | S.D. | 1920

WHITING, J.

This is an appeal from a judgment rendered against the defendant in a bastardy proceding and from an order denying a new trial.

Defendant was adjudged to be the father of the bastard child of one Freda Grimm, who was the complaining witness in the criminal action of State v. Dachtler, reported 179 N. W. 653. 'As in the criminal action, the sole question before us on this appeal is the sufficiency of the evidence to support the verdict and judgment. In the criminal action we sustained the verdict and judgment, even though — it toeing a criminal action — ■ it was the duty of the jury, before finding a verdict of guilty therein, to toe satisfied of such guilt beyond a reasonable doubt.

[1,2] We do not feel called upon to review, at any length the evidence in this case. Being a proceeding civil in nature, the jurors could rest their verdict on what seemed to them to toe a mere preponderance of the evidence. The state’s evidence was almost identical with that in the criminal action. The evidence for the defense was far weaker than in the criminal action. In the criminal action the defense sought to prove that complainant was in the company of a man other than defendant, at a time, a place, and under circumstances from which the jurors might draw an inference that such man was the father of complainant’s child. In this action there was absolutely no evidence tending to show that complainant was in the company of any other man than defendant at or about the time of the conception of the child in question. The judgment and order appealed from are affirmed.

[3] We desire to urge upon all the counsel in this case the absolute impropriety of asserting, in the statement of facts forming a part of printed briefs, facts having no support in the record, even though counsel may know of, or believe in, their existence. This court should always feel justified in assuming that the printed record gives direct support to all facts set forth in an attorney’s statement of facts; furthermore, this court will assume that no facts are so stated, unless counsel believe the same entitled to consideration as tending to support their theory of the case. After a careful consideration of the records in both of these actions, we have -been unable to find any proof that complainant “became a slave and was treated as such *416by the whole (Dacbtler) famil)', who looked -upon her as trash and not fit to associate with the boy;” that complainant “did not dare to g'o home;”- that because “of her ignorant father’s brutality, she had no place to go, and no one to confide in when in trouble;” or “that the defendant has been convicted of rape by two different juries.” On the other hand, we are unable to. find anything to support the claim that defendant has always “obeyed the scriptural injunctions to. ‘Honor thy father and thy mother in these the days of thy youth’;” that defendant is “the sole comfort and support of his widowed mother;” or that at defendant’s home complainant had “the influence of a Christian home.”

SMITH and GATES, JJ., not sitting.