82 N.W. 749 | N.D. | 1900
This action is brought under the statute regulating bastardy proceedings. The complaining witness was never married, hut was delivered of a bastard child, born alive, on the 16th day of Ma}r, 1898, which child was living at the time of the trial. She charges the defendant with the paternity of the child, and alleges that she had sexual intercourse with defendant at the township of Prairie Center, in Walsh county, on or about August 15, 1897. The defendant’s answer consists of a general denial of the allegations of the complaint. The verdict declared, in effect, that the defendant was the father of the child in question.
At the close of the testimony, defendant moved for a directed verdict in his favor. This motion was denied, and the ruling is assigned as error in this court. No exception was taken to the instructions given to the jury, but defendant claims that the verdict is not justified by the evidence, and that the same is contrary to law; i. e. against the instructions given by the trial court to the jury. In all prosecutions under this statute, the pivotal inquiry is whether or not the person accused is the father of a particular illegitimate child; and in this case the plaintiff had the burden of showing, as an ultimate fact, that the defendant is the father of the child of which the complaining witness was delivered on May 16, 1898. The evidence in the case was all admitted without objection, and we find in the record ample evidence sustaining the charge as made in the complaint. It appears that the complaining witness and defendant were employed by a cousin of the defendant, who was operating a large farm in Walsh county. Defendant was a farm hand on the farm, and the complaining witness was a domestic servant at the farm house situated on the farm. Such employment had continued for a period of over two years prior to August 15, 1897, and existed for some time subsequent to that date. The fact that sexual intercourse had occurred with more or less frequency between these parties prior to and subsequent to August 15, 1897, was fully testified to by the complaining witness. Nor did the defendant attempt to deny the general fact of sexual intercourse with the complaining witness. On the contrary, on his direct examination the defendant testified as • follows: “I did not have sexual intercourse with her at all after the 10th of July and before the 10th of September. I did not have sexual intercourse between the 10th of July and the 10th of September.” He further testified that he did not have such intercourse on the 5th of September, 1897. This certainly does not deny intercourse at any time. On his cross-examination the defendant squarely admitted that he had sexual
But one other assigned error remains for consideration. Counsel contend that the verdict is against law, or, at least, against the law of this case, as laid down by the court in its instructions to the jury. The court said to the jury, in substance, in its charge, that it was a matter of common knowledge that the shortest period of gestation was about 260 days; and, applying this statement to the defendant’s testimony, the court further instructed the jury as follows: “If you find that the defendant.did not have sexual intercourse with the complaining witness between the 10th day of July and the 10th day of September, 1897, then you must find the defendant not guilty.” This is a proper charge, under the evidence; and if there were no testimony in the case tending to show that sexual intercourse occurred between the 10th of July and the 10th of September, 1897, between the parties in question, the verdict would be squarely against the instructions of the court, and would have to be vacated for that reason. But it has been seen, in the evidence referred to, that there is evidence of intercouse in August, 1897; and, further, it' may be added that the complaining witness testified positively that the defendant was the father of the child born on May 16, 1898, and that the complaining witness never at any time had sexual intercourse with any person other than the defendant. This testimony being before the jury, it was their duty to consider the same in connection with all the evidence in the case. Having declared by their verdict that the defendant was guilty, we are bound to presume that the jury found from the evidence that acts of sexual intercourse occurred between these parties between July 10 and September 10, 1897. Tf such acts occurred in August, either before or after August 15th, the verdict would not then be contrary to the law, or to any instruction of the trial court. Our conclusion is that the judgment of the trial court must be affirmed.