155 Minn. 440 | Minn. | 1923
Accused of being the father of an illegitimate child born to a girl 16 years old, defendant was tried, found guilty and appealed from the denial of two separate motions for a new trial and from the judgment entered pursuant to chapter 489, p. 829, Laws 1921.
Her reputation for chastity was attacked by defendant, who called numerous witnesses, some of whom implicated her with other men while others contradicted many of the statements she made while on the witness stand. Her conduct for two years preceding the birth of the child was the principal subject of the testimony, which took an unusually wide range, was calculated to exhibit her in an unfavorable light, and pointed to another man as the possible father of the child. Notwithstanding a vigorous defense, the jury were satisfied of defendant’s guilt, and the trial judge was satisfied with their verdict. Under such circumstances an appellate court should
In this case, as in many others like it, there was the usual mixture of truth and falsehood. The impression we get from the record is that the case was one where the atmosphere of the trial would go far to determine where the truth lay. Some portions of the girl’s story were inconsistent and some seem improbable, but on the' whole it was not so unreasonable as to require the jury to discard it as wholly unworthy of belief. She stuck to it through a prolonged and searching cross-examination. In connection with the other evidence in the case, it made the question of defendant’s guilt one which the jury might answer as they did. State v. Snure, 29 Minn. 132, 12 N. W. 347; State v. Veek, 80 Minn. 221, 83 N. W. 141; State v. Deike, 144 Minn. 453, 175 N. W. 1000.
In overruling the state’s objection to the introduction in evidence of a page of a hotel register, the trial judge said he did not see the materiality of the evidence, but perhaps the jury might. Defendant contends that this remark was an improper and prejudicial criticism of evidence in his behalf. He also complains of another incident. One of his witnesses was shown a calendar, and defendant’s counsel began to ask a question about a certain date. He was interrupted by an objection. In sustaining it, the trial judge said that holding the calendar before the witness and pointing to the dates on it was leading and suggestive. Exception was taken to the judge’s manner and tone of voice in announcing the ruling. In denying a new trial, the judge, in a memorandum, said he was hoarse when this occurred and that counsel mistook his difficulty in speaking for anger.
An appellate court is rarely justified in granting a new trial for alleged improper remarks by the.trial judge. 2 Dunnell, Minn. Dig. § 7098. Unless it fairly appears that they prevented the party complaining from having a fair trial, they will be disregarded. It is our opinion that neither remark was prejudicial to any of defendant’s substantial rights.
Many assignments of error are directed to the instructions to the jury. The jury were told that they must try to arrive at the
Fault is found with an instruction that the state was not required to produce corroborative evidence of the act of intercourse. It was a correct statement of the law. 1 Dunnell, Minn. Dig. § 888. We see no reason why it should not have been given.
In varying phraseology the jury were thrice told that they were to decide the case according to the weight of evidence and not to count the number of witnesses on either side and bring in a verdict for the party for whom a majority had testified. Defendant asserts, citing Waller v. Ross, 100 Minn. 7, 110 N. W. 252, 12 L. R. A. (N. S.) 721, 117 Am. St. 661, 10 Ann. Cas. 715, that, although the statement was correct enough, the reiteration of it was prejudicial because it minimized the effect of the testimony of his long array of witnesses. It is not uncommon to find repetitions in the instructions to juries. Under some circumstances, they might be prejudicial to one of the parties. In the present instance it seems improbable that the jury were so influenced by the rule the court reiterated that they failed to give proper consideration or weight to the testimony of defendant’s witnesses or too much weight to that of the girl.
There was an instruction that the state was not required to establish the guilt of defendant beyond a reasonable doubt, but was required “to produce only a fair preponderance of evidence that the defendant is the father of the child.” In our opinion, the use of the word “only” in this connection did not unduly emphasize the rule that less evidence of guilt is necessary to convict in a case of this character than would be necessary in an ordinary criminal case.
There was no error in the refusal to give defendant’s requested instruction that, if the testimony of the girl and that of the defendant were of equal credibility and there were no corroborating cir
On May 15, 1922, the juvenile court of Steele county found that the girl was afflicted with a venereal disease of comparative long standing and committed her to the Minnesota Home School for Girls at Sauk Center. This was the basis of defendant’s second motion for a new trial. At the hearing he produced the certificate of a physician that on June 10, 1922, he had examined him and found him free from venereal disease or symptoms of past disease. The state presented the certificate of the physician who attended the girl in her confinement. It was to the effect that he discovered no evidence that she had or ever had had a venereal disease. It also presented the certificate of another physician to the effect that a man might be diseased in October, 1920, and have no condition present in June, 1922, which would indicate that he ever had been diseased. The length of the intervals between the several dates in question detracts from the importance of this new evidence. It would not be likely to change the result of another trial. It was additional proof of unchastity, but newly discovered evidence which is merely cumulative is not enough to warrant a new trial. It is largely discretionary with the trial court to grant a new trial for newly discovered evidence, and an appellate court will not ordinarily interfere unless there has been an abuse of judicial discretion. 2 Dunnel, Minn. Dig. § 7125.
All other assignments of error have been considered but do not require discussion.
The orders and the judgment are affirmed.