*1 ENGSTROM.1 v. CARL STATE May 21, 1948. 34,546.
No. L. D. Barnard & Gilbert, Kyle Macartney, Briggs, Morton, appellant. Hulstrand, A.
Boy Hendrickson, County George E. Attorney, County B. Kandiyohi Oyen, Assistant and 8. Attorney, County, County Attorney, County, for State. Chippewa
Magney, Justice. defendant paternity, appealed proceeding
In a to determine finding a after verdict for a new trial denying order his motion an him gnilty. urged appeal is whether seriously on the only question the verdict. reasonably supports
evidence years age, gave birth to unmarried and about Complainant, years a number of she April 6,1946. For illegitimate child an in the home of her time as domestic large part a of the worked Melvina Engstrom, on their sister, brother-in-law summer of 1945 she worked there. De- In the Renville. farm near on a farm about mile and a half lived George, brother fendant, Mabel. The sister, exchanged brothers his unmarried away (2d) 553. 1 Reported N. W. helping George, defendant his meals there and, while also.
work, that she had known ten Complainant years; she out with him was many years ago; that the first time went him. during kept company She said also out with once in a while, Oliver Grove with defendant most *2 time; “kеpt company of the that with Carl” during she Numer- ous witnesses were in a to know position they who testified that never of knew defendant out. taking they her No one testified that had ever seen them together. out that at time in Defendant said one the part of latter her him November, request, at she rode with to town. Aside from this he ever instance, denied that took her out.
Complainant said defendant came to her sister’s house where she working was on Saturday afternoon, June 1945, at about four o’clock. She is positive the date and timе. about She said that he used force overpowered and her and that she had intercourse with and Turn. it was him, that time had first she intercourse with If ishe child, says father her she it that is the result of that if intercourse; she did not have with him on that date, he is not the father her child. She no complaint made to her sister or anyone to else about defendant having overpowered her nor that she pregnant. was She sister, testified that her who was pregnant, went day to town that to see doctor and to have a checkup and that left in the aftеrnoon. She sure date her because sister went to see the doctor says at Renville. She that her sister and brother-in-law left before supper, she makes no mention of who did the chores that Her evening. sister and her brother-in-law said they that were home all day; that went to that Renville evening o’clock, about supper at seven after and chores; that took their two children, three aged six, them; that they asked com- plainant go to but that she along, said she could not because Oliver coming was to going she was the circus with him; that Mrs. Engstrom, sister, to see first went the doctor for a checkup; that after she had and her seen doctor she husband children circus; Engstrom, pregnant Mrs. because of her condition, while her husband remained the car and the two chil- returned that after They testified dren saw the circus. about yard into the car drove Grove’s gone to bed Oliver home They positive it. are out of complainant stepped 11:30, According them, driving it. was car and that Oliver was Oliver’s Oliver. out with had been that she said afterwards get had not come that Oliver positively Complainant 11:30. She of his car at get she did not night her that and that husband re- and her her sister there when said that she was still were home two children town. She also said turned from that Oliver husband testified and her sister Complainant’s with her. steadily never but years, for a number called The last time a month. or twice he would call once until He lived in November. was according them, there, he was com- keeping she commenced admits that away. Complainant miles to a went with Oliver ago; many years Oliver pany with after that she went denied on June аt Eenville show with Oliver she her association relating to In all that. her she testi- municipal court, examination In the very evasive. *3 they were related. Oliver because not married to get could fied she again with defendant that she had said Complainant no one was home. She was and that house, July on at her sister’s “I don’t remem- day?” answered, time of the “About what asked, July that on and other witnesses Defendant ber.” about four o’clock. and returned pigs some get went to Little Falls stated rebuttal, testimony, hearing After this time.” also testi- evening “in the She came over there defendant every him week until November. had intercourse fied that she every July week end She said that she call her he would November; last week end until witnesses who were before, numerous As stated eight o’clock. about had never seen them out to know claimed position in a together. fall and defendant were she testified that
Complainant her place; a half mile from sister’s the road along parked and that have ; her into trouble got him he had then told 30á
to get married. on, Later she testified that in at her January, sister’s house, he told her that she was pregnant; that he did say any- thing else and that he had intercourse with her day. If she already told him that she was pregnant, there seems no occasion for his telling her so. She was asked, “How did he (that know?” pregnant), answered, “Well, should know, he had inter- course with me many times.” He admits that in November she was out hanging clothes at her sister’s and that he told her, “You look you like are pregnant,” to reply statement no which was made. After the child was she wrote born, defendant a asking letter for monеy and that he pay the doctor bill. on Later she saw him several times wanted her. marry He insisted that he guilty. was not
The conviction rests on her uncorroborated story birth and the the child.
In 7 Am. Jur., Bastards, 124, the testimony § of the mother is discussed. It is there stated:
“* * * English Statute of 1834, and similar statutes subse- quently enacted, expressly require, as a condition of an order of filiation, that the evidence of the mother of the bastard child ‘shall be corroborated some material particular by other testimony.’ In this country, however, not, statutes have generally, еxpressly re- quired corroboration of the testimony of the complainant in a bastardy proceeding, and it is well settled that in the absence of a statute requiring such it, corroboration is not essential to a con- viction, provided the mother’s testimony is credible and is sufficient- ly clear and in other convincing; words, conviction' will not be denied or set merely aside on the ground that it is based on the mother’s alone.”
In this state there no statute requiring A corroboration. con- may viction be had uncorroborated of the com- plainant. every But conviction on the uncorroborated testimony *4 permitted of the mother should not be to stand. The testimony of be clear and sufficiently convincing. the mother must Each case has of In its own set facts. this there are some case, weaknesses in the testimony of of are also material some defendant’s witnesses. There in is weaknesses of and this conviction complainant, based of entirely story. only her The corroboration is the birth by the child. in de- by plaintiff The differences the stories told' fendant аnd his be accounted for on of witnesses cannot the basis mistake. given by False one side or the deliberately other. may Another trial reveal where the truth lies. When an un- charges married woman a man with father her being he, child, if met an innocent, impossible is almost situation.' sym- pathy of the naturally with the unfortunate mother. When she tells them under oath that defendant is the father of her child, they conclude must know who the father of her child is, and that when she accuses defendant that should settle the matter. Counsel for in his argument before this cоurt stated that you this kind of a case “if are nominated, you are elected.”
Under the case, facts based verdict, as it is upon the uncorroborated statement which is not cqmplainant, sufficiently clear convincing, is, against our so opinion, weight of the require as to a new trial.
Order reversed.
Peterson, Justice (dissenting). only
This case involved
determination
of a dis-
question of
puted
upon conflicting
fact
An
evidence.
examination of
convincing
the evidence is
that the jury was warranted in believing
told the truth
state’s witnesses
and that
the witnesses for
the defense not
did not
so,
do
but that the defense viewed as a
whole
as we said
State v.
had,
Hankins,
Here, complain- had been the facts revealed and explored. ant’s version She there *5 306 result of pregnant
testified that she became of in the afternoon at about four o’clock defendant which оccurred and sister, farmhouse of her brother-in-law 30, 1915, June in Renville to while George Engstrom, and Melvina Complainant pregnancy. Melvina’s physician concerning consult a Melvina. She also by had been and lived employed with de- on week ends hearing testified at the every 21 and that on regularly fendant from until November July such occasion had intercourse. was the complainant’s
At the trial in the district court version A hearing. surgeon same as it preliminary physician was at of become as the result inter pregnant testified that she havе July course or 21. evidence on either June as she on The 30, claimed, v. ample the state was to sustain conviction. State Tofteland, 826; 216 Minn. N. W. State v. Minn. 128, 11 (2d) McIlraith, 536, 4 W. 202 Minn. (2d) 312; 17, 361; State v. 277 N. W. Hanke, 209 N. Cotter, Schmidt, State 167 Minn. W. State v. Dig. Supp. N. W. & 110, 193 954; Dunnell, §§ The defense undertook to meet and to overcome the case state’s by indisputable what it to the to be hoped appear proof only child, defendant was not not the father of the but also that he complainant. never had sexual intercourse with The de- fense’s (1) evidence consisted of evidеnce to show alibis not on June 30 and occurring July acts of intercourse but for every during July, August, September occasion (2) lack of for sexual complainant; opportunity intercourse amount- to insulation ing complainant; (3) contra- practically everything complainant diction of testified to on direct examination. The witnesses to substantiate the defense included de- relatives, some of his some his friends. fendant, alibi his sister defendant, witnesses consisted Mabel Sand- unmarried, who was then Ed. who later berg, Sandberg, married her, Negеn. and Raneo Stanley Johnson, Defendant testified that be- all day it rained June 30 he worked around his barnyard, cause and one-half distant from George’s farm; was about one miles which go that he did not farm George’s day; on that that he did not have sexual intercourse with complainant day on that or any at other time; that in evening he and who lived Mabel, with him, went to that on Renville; July Negen he, Johnson, went to Little Falls to buy some pigs; they returned late the after- noon ; that after dinner he and Mabel went to where Renville, spent evening togethеr; and that he had not been out with com- plainant at any time, except once November 1945, when she took a trip to Renville with car. Mabel testified that she knew that defendant was around farm working his own during the entire day of *6 June in evening that defendant and she went to Ren- ville, they where attended a circus; night that on the July defendant and she were in together Renville; that she knew that they were together night because was a Saturday night and as she “I because, said, always went with most Saturday and Sunday nights.” Ed. Sandberg, who was then Mabel’s so-called “bоy friend,” testified that defendant and Mabel went to Renville together every Saturday and Sunday night during June, July, and August and that on those nights Mabel and he sat in his car while defendant went about town. Johnson testified about the pig-buying trip. Negen testified that defendant and he together generally on week and ends, that, they while may not have been on together some Saturday nights, they were always on together Sunday nights; and that during the on evening July defendant and he were to- gether drinking beer in a restaurant in Renville. Not did Raneo claim to remember particular this day, but аlso that he distinctly remembered every week end in 1947 up to the time of trial, every one “quite a few” of the week ends in 1945, and “about some of every week end”
To show lack of opportunity for sexual intercourse between de- fendant complainant and in the farmhouse on June George Melvina they testified that were at home during the afternoon went to Renville in the evening during the afternoon, as complainant testified. Their versions they what did in the evening agree. do not Melvina testified they first went
doctor’s car near оffice; they George’s that afterward their circus; George car while that she sat alone children, years one about six and the other about three attended old, no George’s same, except circus. version was the that he made mention having been to the doctor’s office. Neither of them testi- fied as to office the name of the doctor. Neither the doctor nor his pro- assistant was called as a nor were office records witness, his duced if when, to show at Melvina was in his office. On the all, motion for a new the testi- trial, attempted defense bolster mony of and Melvina that were- at the circus evening by not of the doctor or his office assistant or records, by three witnesses who claimed to have seen George and the children at the circus. To show lack of entire for opportunity sexual between defendant and complain- ant, Melvina testified that she exercised such watch- vigilance and fulness over defendant and had no oppor- tunity being or for together without her knowing conversation it, about much less for sexual intercourse. Mabel gave similar testi-
mony vigilance as to her over Then, watchfulness defendant. this, top defendant himself testified that he had never been out with and other complainant, gave defense witnesses negative had never seen defendant and together.
In addition to the of complainant’s contradiction im- *7 plicit in the defense concerning the alibis and the lack for opportunity parties have sexual intercourse, defense undertook to contradict her with respect to other matters. For examination defendant example, on direсt not only denied com- testimony to the effect that plainant’s during the fall of 1945, when in his him sitting car, were she told pregnant she was a result of their relations and that she then demanded that he marry her, knowledge also all of the fact but that complainant had him pregnant born, been until after child was when she notified On the fact letter. cross-examination, however, he testified in November when was hanging he told clothes, her, obviously “You look you pregnant.” like are At that time she pregnant. was
In rebuttal, complainant testified that she defеndant were to- gether in a restaurant Eenville under such circumstances that Ed. an- Sandberg Further, saw them there. she testified that on other defendant, Hillstrom, occasion she was with his cousin Lois and Negen, and that on that occasion defendant wanted her to sit in the back seat of his car with but that she declined do Negen, so. Neither Sandberg, defendant, Negen deny nór was called Lois, complainant’s in the respects mentioned. was warranted in believing con- wi
cerning the alibis was false toto. Because there was basis for be- lieving thаt defendant and Mabel falsely had testified with respect to other matters, jury might well have believed them to be en- tirely unworthy belief, and, because that was true, was justified in disbelieving their testimony as to the alibi for June 30.
The testimony concerning the alibi July absolutely in- credible. Here, the versions of the different witnesses not only vary, were also double and triple Mabel conflict. testified that defendant and she together were Sandberg Eenville. Ed.
that Mabel together were in his very car at the time Mabel said defendant and she were togethеr. that, Negen On of all top testified that defendant and he very a restaurant at that time drinking Now, beer. utterly at one and impossible that same time defendant could be with Mabel in Eenville and with Negen in a drinking restaurant beer and that Mabel could be about town with defendant and with Ed. Sandberg in car. The same is true of the alibis for the other Saturday nights. Mabel de- fendant most with her Saturday nights; Negen had defendant with him every Sunday night and some Saturday nights; Ed. Sand- berg Mabel with in his car every Saturday night. Of course, at one and the same time defendant could not be with both Negеn and Mabel Mabel, could not be with both defendant and Sand- berg.
310
An a com it is established it is defense, alibi is a valid and when is true, because that plete easily fabricated, and, one. But an alibi is the testi experience of law with common corresponds the rule to the most search mony support subjected of an alibi should be 179, 188 Minn. N. W. State v. ing scrutiny. Duddy, 261; State v. & Dunnell, Dig. Supp. 81 N. W. Minot, Minn. 118, § false alibis are assert Experience practice many has shown that familiar suspicion by ed. The defense of alibi is those viewed circles, In the defense оf police prosecuting with such matters. de “hip pocket known as the dubiously suggestively alibi is produced— an alibi can be fense,” facility because of the with which legislature use. because one can be fabricated instant evils and has provided M. S. A. 630.14 has taken notice these required advance may give in criminal cases the defendant be to stating the defense of alibi. particulars notice certain disposition 2. Where a has shown a not to tell the truth, witness may contrary favor a jury reject version Grengs Erickson, to v. 225 Minn. appears 153, which be credible. 578, N. W. (2d) 881; Hankins, 29 W. State v. 193 Minn. Mabel re supra. Here, falsely both defendant and testified con falsely to the alibis. spect Furthermore, knowledge complainant’s pregnancy prior his lack of cerning own shows he knew about the birth of the child. His fact to when it when he commented about the she was out clothes some months the child was born that hanging before Consequently, appeared pregnant. be warranted concerning the alibi for disbelieving their June 30. Dirnberger, M & M Co. v. 190 Minn. 3. As we said in Securities 250 K W. 803: 57, 62, unexplained an failure of a party
“So the law has come to be that person pre- who knew the facts who a witness produce favorably justifies an testify unfavorable sumably inference.” v. Shockman Union here and elsewhere.
That is the settled law (2d) 812; Waters Fiebel 19 N. W. Transfer Co. 220 *9 & Co. 210 Schultz v. Swift (2d) 461; 13 N. W. korn, 489, 216 Minn. 206 Metropolitan L. Ins. Co. 7; v. Vorlicky Minn. 299 W. 533, 71 Minn. City Ry. Paul Co. 287 Fonda v. St. 34, 109; Minn. N. W. & Supp. 3444; 2 341; Dig. S. 166, Dunnell, § 74 N. W. 70 A. R. 438, request is made timely 193. Where Jur., 20 Am. Evidence, 187, §§ Fonda granted. the it should be embodying rule, for an instruction supra. City Ry. v. Paul Co. St. whom claims call the doctor Melvina
Here, defendant failed to or and failed to assistant, of June night 30, she visited on the Under the rule of Price v. Stand the doctor’s office records. produce A. 95 N. such evidence could 264, 1118, ard L. & Ins. Co. 90 Minn. W. objection. Melvina’s There is produced against have been even as the objected. contrary, no reason believe that she would have On inference was partisan defendant, because had become a she testimony would have consented. The permissible or his would have settled con doctor assistant and his office records in clusively evening, whether Melvina was at the doctor’s office claimed, complainant as she or in the claimed. Failure afternoon, to infer if produce proofs permitted such the testi un mony produced records been would have been view, favorable to defendant. In that was warranted in rejecting testimony Melvina’s that she and went in evening, into town when she claims she to the doctor’s went and not in testimony but also their office, afternoon, were during at home the afternoon when claims sexual occurred, because their being during made the truth of their at home the afternoon de in pend whether Melvina went to see the doctor the evening. the same have been Likewise, inference drawn because of recall Ed. Sandberg defendant’s failure to to the stand to contradict complainant’s testimony to the effect that he saw her and defendant the restaurant failure to together Renville, because of his Negen recall to contradict her she, the effect that de- in defendant’s together and Lois Hillstrom Ne'gen,
fendant,
the same effect
of all
а further
inference to
top
this,
car. On
As Mr.
failure to call Lois at all.
permissible
of defendant’s
because
States,
v.
275 U. S.
Butler said Mammoth Oil Co. United
Justice
151, quoting Lord Mansfield
13,
9,
137,
48 S.
72 L. ed.
51,
1,Ct.
“all evi-
63, 65,
Reprint, 968,
Cowp. pt. 1, pp.
Blatch v. Archer,
was in the
proof
to the
which it
according
dence is to be weighed
and in
of the other
power
of one
power
produced,
side to have
here.
have contradicted.”
it was
So,
con-
Furthermore,
4.
defendant’s
failure to take the stand
referred to in the
respect
to the matters
tradict
credibility.
to his own
State v.
paragraph
directly
preceding
Minn.
313 ordi- according to Ms version. The fact is that casually, occurred narily sex, preg- matters concerning men do not mention women delicacy propriety the like. A of Such nancy, and sense forbids. of open only intimacy. Here, discussion is to those who are terms intimacy well such jury might have believed that consisted of by complainant by sexual one claimed and denied defеndant. claim George George and Melvina that took their Likewise, six-year-old three-year-old night children to a performance of the car, Melvina circus while sat their well have taxed' the jury’s credulity. jury might The have believed that as a doting six-year-old father would take his a night son to perform- circus, ance but it must been well-nigh have impossible to three-year-old believe that take daughter, who would be sure to fall who then could asleep and have been put in an im- sleep in the car to under her mother’s bed watchful care. provised added improbability inherent to other taint infirmities so justify as to their rejecting weakened it en- tirely. the evidence here, as Where, conflicting, the jury might con- affecting weight credibility of a
sider
witness’s testimony
or
thereof,
the lack
blood
bias,
Ms interest or
relationship,
friend-
hostility to
partisanship,
the adverse
ship,
party, and the like.
Schwartz,
Weinstein v.
7. the Lastly, demeanor De- a discredited lot. have that nesses must disclosed determining telling who great weight may еvidence be of meanor (7 Cir.) & Co. v. Federal Trade Comm. truth. S. Buchsbaum F. (2d) record one with the convic-
A of the leaves careful examination of the withstood the complainant’s version facts assaults tion that complete byit the defense. The witnessed denoue- upon made watertight be a defense— collapse supposed what was to ment of lack of false; proof opportunity be proved alibis were to to complainant have sexual intercourse was defendant untrustworthy incredible; so as to bе and the be contra- shown to failed. At the the defense lacked completely finish, dictions testimony only she not vitality deny complainant’s that had been defendant, the denial which asserted as an impor- that had defense, of the but also been out with him, feature tant challenge That was a for the his friends. defense relatives, his but one which it declined. Under the what meet, circumstances, jury to infer? Was it that himself could defendant not take was the again making the risk further damaging stand without ad- concerning knowledge complainant’s as thе one such missions he had when falsely which showed that he testi- pregnancy, thereof, concerning trip a lack those fied to Renville with yard, the conversation her which and Melvina’s claims that had Mabel’s showed insulated were false? Ed. Was it that Sand- already scrambled the alibis and berg’s that further himby do further might only harm? itWas like that, apple spreading the barrel taint, Negen by rotten its his un- belief that created whole defense truthfulness was tainted recalling might with it and accentuate that fact, also, thoroughly because had been discredited, his testi- be entirely useless? Was it mony that Lois not give broken already an defense? repair Johnson’s false nothing he had substantive to contribute testimony showed
3^5 way testimony. of further well have jury might concluded the defense itself exposed false; realized that its claims been its witnesses had been it had failed discredited; utterly. It well complainant’s have concluded that the version was true and had withstood all the made it. upon assaults That being true, conviction should stand.
Thomas Justice Gallagher, (dissenting).
I concur in the decision of Mr. Justice Peterson. Mr. Justice Knutson, having been a member of the court at the time of the took no in the consideration or de- argument, part cision this case.
CHRIS LARSON AND ANOTHER S. ARCHER-DANIELS-
MIDLAND COMPANY, INC.1
May 21, 1948. 34,651.
No.
1 Reported (2d) in 32 N. W.