197 N.W. 866 | N.D. | 1924
This is a bastardy action. The defendant appeals from a judgment of the district court of LaMoure county and from an order denying a motion for a new trial. The court made formal findings of fact.
The only question is as to the sufficiency of the evidence to support the finding of fact that the defendant was the father of the bastard child of one Weaver, the complaining witness in the case.
The salient facts are as follows: The defendant, age twenty-one, admits that he carnally knew the complaining witness, age twenty-six on May 13, and again on May 20, or 23, 1922. On March 11, 1923, a child was born to complaining witness, the result, as she claims, of the amorous relations with this defendant of the preceding May. She asserts emphatically that never did any man, other than the defendant, know her and that he is the father of her child. A physician, called by the state, testified as to the usual period of gestation and that a child borne on March 11, 1923, might have been begotten on May 13 or May 20, or 23, 1922, although if intercourse took place the latter part of May or the first part of June, 1922, it would be more probable that conception took place on account of the intercourse on the latter date.
The defendant sought to prove that the complaining witness had intercourse with other men, about the time when the incidents to which she testifies took place, which caused preganey. To show this, he called
Such, in broad outline, is the story unfolded in the record. It is not necessary to give the salacious details. The. trial court expressly found that the defendant was the father of the child. The trial court was not obliged to accept the story of the wdtness AVinegar as conclusively on the question of paternity; the complaining witness emphatically denied ever having had connection with any man other than the defendant. In a case like this, tried to the district court without a jury, and not properly triable de novo in the supreme court, the findings of the trial court come like legal conclusions and are presumed to be correct; the burden is on the appellant to show error and a finding based on parol evidence “will not be disturbed unless clearly and unquestionably opposed to the preponderance of the testimony.” Jasper v. Hazen, 4 N. D. 1, p. 5, 23 L.R.A. 58, 58 N. W. 454. This rule is reaffirmed in Griffith v. Fox, 32 N. D. 650, 156 N. W. 239; Hartung v. Manning, ante, 478, 196 N. W. 554. AVe are satisfied that this is the correct rule, certain expressions in other cases to the contrary notwithstanding. See Griffith v. Fox, supra, at p. 654 of the official report. We think there is'sufficient evidence to support the findings of the trial cottrt and to justify the judgment entered pursuant thereto.
It is contended by the appellant that the order of the trial court, directing the sheriff to hold the witness Winegar on the charge of fornication, conclusively shows that the court below believed his testimony; that it was, therefore, impossible for the complaining witness to say, with any degree of certainty or probability, whether defendant or Winegar was the father of the child; and that, therefore, the state failed to sustain the burden of proof, with the result that the evidence is insufficient to sustain the finding as to paternity and the judgment entered pursuant thereto. The trial court, doubtless moved to indignation by the testimony and demeanor of Winegar and, perhaps, other-witnesses, quite severely castigated Winegar at the conclusion of the trial. Such remarks are made a part of the record’and it is urged by defendant that they indicate that the court believed that Winegar told the truth when he said he had committed fornication with the complaining witness. The court, however, afterwards made formal findings of fact on which the order for judgment is based. The court found against the defendant on the issue of paternity and the only question before us is whether the evidence supports that finding.
It should be'noted that pregnancy is accompanied by symptoms or signs which indicate the condition, not only to the skilled physician, bxxt to the woman herself; that some of the signs appear at an early date after conception — perhaps within a very few days afterwards. When the subjective signs appear, the woman having been exposed to the possibility of conception, medical axxthorities say that pregnancy is presumptive. It may not be certain that the condition exists until the positive or diagnostic signs appear, such as the fetal heart soxxnds, the fetal movements, ballottment, etc., bxxt the testimony of the woman herself may nevertheless be of controlling importance upon the question of the time when conception took place, and it woxxld not be correct to say, as xxrged by defendant, that her testimony was entitled to no weight on this point. In the case at bar, on defendant’s own theory, some time elapsed between the last connection with defendant and the alleged relations with the witness Winegar. During sxxeh period she anight well have discovered some of the signs and symptoms that early
Counsel relies on and quotes from Wisconsin cases to the effect that “paternity cannot be established against defendant beyond a reasonable doubt if it appears that the prosecutrix had intercourse with another man at a time consistent with the latter’s responsibility for her pregnancy.” (Italics are ours.) Busse v. State, 129 Wis. 171, 108 N. W. 64; Baker v. State, 47 Wis. 111, 2 N. W. 110, 2 Am. Crim. Rep. 606. Counsel likewise cite cases from Michigan and Indiana. These authorities are not controlling in this state. The object of a bastardy proceeding is not to punish the father, but to insure provision for the maintenance and education of the child. The proceeding is “not strictly either a civil or a criminal proceeding.” State v. Lang, 19 N. D. 679, 683, 125 N. W. 558; State v. Sibla, 46 N. D. 337, 179 N. W. 656. Therefore, the rule that the defendant’s guilt must be proved beyond a reasonable doubt does not apply. It is sufficient if the evidence preponderate in favor of the finding that the defendant is the father of the child. State v. Goetz, 21 N. D. 569, 131 N. W. 514; State v. Brandner, 21 N. D. 310, 130 N. W. 941; 7 C. J. 995 and note. “A bastardy proceeding which is brought under the provisions of chap. 5, Rev. Codes 1905 (chap. 5, Code Crim. Proc. Comp. Law's,. 1913), although quasi criminal in its nature, is governed, in so far as its trial is concerned, by the law regulating civil actions. Par. 1
The findings and the judgment have sufficient support in the evidence.
The judgment is affirmed.