170 N.W. 118 | N.D. | 1918
Lead Opinion
Appeal from the district court of Richland county, Frarilc P. Allen> Judge.
This is an appeal from the district court of Richland county overruling a motion of the defendant for a new trial. The defendant was brought before W. P. Robbins, justice of the peace, upon a warrant issued by him, upon a complaint signed and sworn to by Clara Hoffman. In the complaint she alleged that she was an unmarried woman
The material facts are as follows: The complaining witness, Clara Hoffman, was a single woman, twenty-one years of age, a resident of Richland county, North Dakota; she was employed on defendant’s farm as a servant part of the year 1913, and from June, 1914, to April, 1915, and from June until October, 1915. The defendant is .a single man, a farmer, who cultivates three quarter sections of land. 'The complaining witness claimed that an act of intercourse was had hy. the defendant with her on June 27th, 1915, and a child was born in-Richland county, North Dakota, on March 27th, 1916. Complaining witness also testifies tha.fr the defendant had sexual intercourse with her three or four times a week continuously during most of the time she -was employed by him. She testifies she never had sexual intercourse with any other man, and that the defendant is the father
The proceedings in this case, though commenced in a somewhat similar manner to those of a criminal case, by the making of a complaint and the issuing of a warrant of arrest based upon a complaint, are, nevertheless, under our statute, civil in their nature. The state is interested to the extent that it does not desire the child to become a public charge, and it is protected in this regard where a sufficient sum is judged to be paid by the father of the illegitimate child for its support, maintenance, and education. By such a judgment the mother of the child is also assisted in rearing the child and in its support and maintenance. The sole question involved in this case is whether or not the defendant is the father of the child in question. The jury are the exclusive judges of the credibility of the witnesses. It may give credit to the testimony of one witness and discredit the testimony of others. In this case it evidently discredited the testimony of the defendant and his witnesses and believed the testimony of the complaining witness and that of other witnesses produced by plaintiff and rendered a verdict in plaintiff’s favor. We do not think such verdict or the judgment entered thereon is against the weight of tho testimony. There is nothing in the record to indicate the jury was in any way prejudiced or that its verdict was rendered through bias or sympathy.
The motion for a new trial is based upon alleged newly discovered evidence. In support of the motion are the affidavits of John Hiertz, Charles Elliot, Edward H. Boehme, and Albert Warner. The affida-
Concurrence Opinion
(concurring specially). The sole question involved upon the trial of this action was whether the defendant was
I have read the evidence and the affidavits submitted upon the motion for a new trial. The defendant was ably defended. He seems to have had a fair trial in every' respect. I do not believe that an appellate court is justified in saying that the trial court erred in refusing a new trial.
Concurrence Opinion
(concurring specially). I concur in the result and in the reasons assigned therefor in the opinion prepared by Judge Grace, except that I am not prepared to say that all the newly discovered evidence would necessarily have been inadmissible upon a second trial. I am convinced, however, that the newly discovered evidence is not of such a character as would be likely to change the result, and I consider that the showing of diligence is weak.