131 N.W. 514 | N.D. | 1911
Defendant appeals to this court from a judgment entered on a verdict in tbe district court of Pierce county, in which, he was adjudged to be the father of a child bom to an unmarried woman of that county. The proceeding was a prosecution under the bastardy statute.
Error is assigned on the court’s denial of a challenge for actual bias, interposed by the defendant to one of the jurors who acted as such on
Queenan v. Territory, 11 Okla. 261, 61 L.R.A. 231, 71 Pac. 218, affirmed on appeal in 190 U. S. 518, 17 L. ed. 1175, 23 Sup. Ct. Rep. 762; see also Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258; Kohl v. Lehlback, 160 U. S. 293-301, 10 L. ed. 132-135, 16 Sup. Ct. Rep. 304; Raub v. Carpenter, 187 U. S. 159, 17 L. ed. 119, 23 Sup. Ct. Rep. 72.
And the failure to object to a collected jury waives all questions improperly excluded on voir dire and all matters of irregularity occurring during the impaneling of such jury, and a party failing to challenge waives thereby all irregularities in the impaneling of a jury; and this rule applies to all rulings of the court on the question of competency of jurors.
Flynn v. State, 97 Wis. 44, 72 N. W. 373; Emery v. State, 101 Wis. 627, 78 N. W. 145; Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258; Kohl v. Lehlback, 160 U. S. 293, 40 L. ed. 432, 16 Sup. Ct. Rep. 304; Raub v. Carpenter, 187 U. S. 159, 47 L. ed. 119, 23 Sup. Ct. Rep. 72; Cornell v. State, 104 Wis. 527, 80 N. W. 745; Brinegar v. State, 82 Neb. 558, 118 N. W. 475; Queenan v. Oklahoma, 190 U. S. 548, 47 L. ed. 1175, 23 Sup. Ct. Rep. 762; McNish v. State, 47 Fla. 69, 36 So. 176; Webster v. State, 47 Fla. 108, 36 So. 584; Lindsey v. State, 111 Ga. 833, 36 S. E. 62; Adams v. State, 99 Ind. 244, 4 Am. Crim. Rep. 309; State v. Carpenter, 124 Iowa, 5, 98 N. W. 775; State v. Furbeck, 29 Kan. 532; Morgan v. State, 51 Neb. 672, 71 N. W. 788; Reed v. State, 75 Neb. 509, 106 N. W. 649; O’Rourke v. Yonkers R. Co. 32 App. Div. 8, 52 N. Y. Supp. 706; Goad v. State, 106 Tenn.
Defendant urges that the evidence is insufficient to sustain the verdict of guilty. It is unnecessary to detail the evidence, for so to do would serve no good purpose. Suffice it to say that the birth of the child to an unmarried eighteen-year-old Russian girl is admitted. Much of the testimony, including that of the prosecutrix, was elicited through the use of interpreter. Her woeful ignorance stands out in bold relief throughout her testimony. She does not even know her own birthday. It is apparent also that she was reluctant to lay bare to the jury the whole truth as to her conduct with the defendant, and as to some circumstances her testimony is accordingly somewhat indefinite; but the actual facts necessary to convince us of the justice of the verdict are equally apparent in all the testimony, including that offered by the defendant himself. The prosecutrix is corroborated in essential and important details by the testimony of the defendant’s father and defendant’s brother-in-law, as well as by the brother of prosecutrix. Also defendant is contradicted and impeached in several instances in material portions of his testimony by other witnesses than the prosecutrix. The jury were fully justified in their finding that the defendant is the father of said child.
Defendant complains of leading questions having been asked of the mother during the trial. The permitting of examination by the use of leading questions is largely in the discretion of the trial judge who hears the testimony, sees the witnesses, and can fully comprehend the necessity or want of necessity for such method of examination, and accordingly the discretion of the trial judge as exercised in such particulars will not be disturbed excepting for gross abuse plainly resulting to the prejudice of the defendant. This rule is so well established as to need no citation of authorities in its support. In the instant case the ignorance of the prosecutrix, the circumstance unusual to her of being obliged to relate matters to her own shame in a public court room, show sufficient cause for sanctioning the method of examination alleged as error.
Defendant’s counsel excepts to certain remarks of the court made during the course of the trial, axxd ux’ges the saxne as error. The remarks were occasioned by a question asked by defendant’s counsel, to
The last assignment of error is based upon the instruction of the court, the defendant claiming that the court misplaced the burden of proof in the instruction to the jury upon which such error is assigned. The instructions so excepted to were given at the close of a full and comprehensive instruction covering law and fact involved, and were intended by the court merely as a statement of the form of the two verdicts. In this respect the court instructed the jury that “two verdicts will be given you in this case, one reading, ‘We, the jury, in the above-entitled case, find the defendant, Cornelius Goetz, to be the father of the bastard child born to L. M.’ If, after examining all the evidence, you can fairly and conscientiously say that the preponderance of the evidence is in favor of the state, that is, you believe the weight of the evidence shows Cornelius Goetz begot this child on or about the 1st day of April, 1901, then you should bring in this verdict.”
“The other verdict will read: ‘We, the jury, in the above-entitled case, find the defendant, Cornelius Goetz, not to be the father of the bastard child bom to L. M.’ If upon examination of all the evidence, you find this to be the case, then it will be your duty to bring in this verdict.”
To these instructions given orally, the defendant, within the period allowed, filed exceptions, claiming that the burden of proof was misplaced, and that the jury, to find the defendant not guilty of the charge, had to find affirmatively by a fair preponderance of the testimony that he was not the father of the child in question. In this connection no special significance can be placed upon the use of the word “find” in the instructions relating to the verdict of not guilty. In the ordinary criminal verdict the jury find the defendant not guilty because his guilt is not established, and therefore by verdict they affirmatively find as a fact his- absence of guilt. This verdict is the equivalent to finding that the defendant is not guilty, and the equivalent to the negative statement by the jury that the defendant is not the father of the child. And the same argument could be made as to such expression that could be made to the use of the word “find” in a verdict of not guilty. In either case it is a finding of not guilty, because of either absence of proof of guilt or actual proof of innocence. It cannot bo inferred from the mere
Defendaxxt urges as grounds for a new trial the nonappearance of a witness under subposna to appear in defendant’s behalf, which witness failed to appear on account of the weather axxd her being ill en route from her home to the place of trial. The x'ecox*d fails to disclose that any postponement of the trial was asked, or that' the absence of the witness was even called to the attention of the trial court. That the trial continued over two days, and that defendant rested his case without making it known to the court that any witness was absent and without requesting a continuance. Such witness was a midwife, who attended prosecutrix during her confinement. The affidavit of this absent witness was thereafter filed and considered on the motion for new trial. The affidavit fails to disclose that such witness could give any testimony material to the case or tending in any way to establish a
This disposes of all assignments of error taken by the defendant, and accordingly the judgment is ordered affirmed.