State v. Watzek
197 N.W. 669
Minn.
1924
Check Treatment
Lees, C.

Aрpellant was tried on the charge of being the father of the illegitimate child of a young woman 26 years of age, was found guilty and has appealed from an order denying his motion for a new trial,

There was ample evidence to justify the jury in finding the appellant guilty, and we pass directly to the principal questions discussed in the briefs.

Over objection, the midwife who attended the mother when the child was born tеstified that while in travail she ‍‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​‌‌‌​‌​‌​‌‌​‌​‌​​​​‌‌​​​​​‌‌‍said appellant was the father of her child. The objection should have been sustained. State v. Spenсer, 73 Minn. 101, 75 N. W. 893. To render the mother a competent witness in bastardy proceedings and as a prerequisite of such proceedings, the statutes of some states make it necessary that, during her time of travail, she should accuse the defendant of being the father of her child and should remain constant in her accusations, and in other states such declarations are admissible even in the absencе of such statutes. 3 R. C. L. p. 762; 7 C. J. p. 990. There appear to be valid reasons to support the rule, but the question is set at rest in this jurisdiction and we will not re-examine it.

The error in the ruling was cured when the trial judge struck out this portion of the midwife’s testimony before the trial ended and *353instructed the jury to disregard it. The contention that the impression it made upon the minds of the jurors could not be removed and ‍‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​‌‌‌​‌​‌​‌‌​‌​‌​​​​‌‌​​​​​‌‌‍that appellant wаs prejudiced notwithstanding the court’s admonition cannot be sustained. Appellant relies on Juergens v. Thom, 39 Minn. 458, 40 N. W. 559; Dugan v. St. Paul & D. Ry. Co. 43 Minn. 414, 45 N. W. 851; State v. Yates, 99 Minn., 461, 109 N. W. 1070; Crowley v. Burns B. & Mnfg. Co. 100 Minn. 178, 110 N. W. 969; and Evans v. Chicago M. & St. P. Ry. Co. 133 Minn. 293, 158 N. W. 335, but in these cases and many оthers the rule is recognized that the admission of improper testimony is not ground for a reversal, if it is reasonably clear that the pаrty objecting was not prejudiced. This is such a case. The child was born on April 15, 1922. On March 10, 1922, complainant told appellant that she wаs with child by him. On March 20, 1922, she signed the complaint' against him. Throughout the trial she testified consistently that he was the father of her child. The testimony of the midwife was merely cumulative. It added little, if anything, to the weight of the evidence against appellant. Errors in the admission or exclusion of evidence will occur, and, when the trial judge does all that can be done to correct the error, this court should be slow to order a retrial.

In her testimony in chief the complainant fixed the date of her only intercourse with appellant between the ninth and thirteenth of August, 1921. She related the circumstances under which appellant visited her on the occasion in question. She was then emрloyed as a domestic in the family of a farmer named Schwartz. Appellant was a farm hand, working on a neighboring farm. . He admitted the visit, but fixеd July 22, 1921, as the date. He also admitted that he and the complainant were together in the yard of the Schwartz farm from 9 until 10 o’clock in the evening, after all the members of the Schwartz family had gone to bed, but he denied that he had intercourse with her then or at any other timе or place. The testimony of Schwartz and his wife was to this effect. Schwartz fixed July 30 as the date, and his wife, the twenty-seventh, twenty-eighth or twenty-ninth оf July. There was no dispute about the visit, but there was a dispute as to the date.

*354After the testimony in chief had been given on both sides, the statе recalled the complainant, who testified that appellant did not visit her on July 22, that it was between the ninth and thirteenth of August, and, over objection, that on the occasion of his visit, whenever it occurred, the child was begotten. Appellant’s complaint is that in reсeiving this testimony the court permitted ‍‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​‌‌‌​‌​‌​‌‌​‌​‌​​​​‌‌​​​​​‌‌‍the state to change its position; that, having charged in the complaint that the child was begotten on or about August 9, and having supported the allegation by complainant’s testimony in chief, it was bound to prove that the child was begоtten at the time alleged. The exact date was not important. The question was whether or not appellant was the father of the child. State v. Ryan, 78 Minn. 218, 80 N. W. 962. All the witnesses agreed as to the circumstances of appellant’s visit. They-differ only as to the time and as to аppellant’s conduct with complainant. She may have been mistaken about the date. She cannot be about his acts. Either hе or she deliberately testified falsely as to that, and this was the only vital issue in the case. The state did not shift ground with respect to that issue and we see. no error in the admission of complainant’s testimony in rebuttal.

The county attorney asked Schwartz whether any other men visitеd the complainant while she was in his employment, and he answered that one evening near the end of June, or the beginning of July two boys who worked for a neighbor came to see her and that she went out of the house and met them. This incident was enlarged upon by apрellant’s counsel in the cross-examination of Schwartz. In the re-direct examination the county attorney asked the witness whether he had trouble with; the complainant before she left his employment. Objection was interposed on the ground that the state could not impeach its own witness. The objection was overruled and Schwartz, answered that his wife discovered that complainant had taken some things not belonging to her and had discharged her, and that complainant had used vulgar language when his wife objected to her being out at night with the two young men. • The county attorney should not have been allowed to examine Schwartz as an adverse witness or to affеct his credibility *355by showing ill-will towards complainant. But it seems clear that the whole matter was of so little moment that it could not injure apрellant’s case. Schwartz’s testimony that other young men. had called on complainant ‍‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​‌‌‌​‌​‌​‌‌​‌​‌​​​​‌‌​​​​​‌‌‍and that she was dishonest and used language from which it might be inferred that she was unchaste, was favorable to appellant. In bringing out these facts, the state was helping, not hurting, his case.

Upon the authority of State v. Allrick, 61 Minn. 415, 63 N. W. 1085 the court was requested but refused' to give the following-instruction:

“You are instructed that if this child was begotten between the 9th and 13th of August, 1921, and was born April 15, 1922, then the period of gestation could not have exceeded 249 days, or 27 days less than the usual period. It is a matter of common knowledge, of which we have a right to take judicial notice, that if the period of gestation was only 249 days or less, the delivery would be premature, and the child would not be fully developed at birth. The evidence in this case shows conclusively that the child was fully devеloped and stands uncontradicted: - Hence on this evi-‘ dence you are instructed that this child was;- not begotten after July 30th, 1921.’’ •

State v. Wiebke, 154 Minn. 61, 191 N. W. 249, and State v. Domish, 154 Minn. 512, 191 N. W. 1002, should be reаd in connection with State v. Allrick. The court would not have been justified in stating that, if the period of gestation was only 249 days, the child would not be fully ‍‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​‌‌‌​‌​‌​‌‌​‌​‌​​​​‌‌​​​​​‌‌‍developed at birth. Neither was the state of the child’s development shown so conclusively as to have warranted an unqualified instruction that it was not begotten after July 30, 1921.

Order affirmed.