State v. Brunette , 28 N.D. 539 ( 1914 )

Bruce, J.

(After stating the facts as above). Counsel for appellant has made seventy-eight assignments of error in this case, and states in his brief that these various assignments ’ “will convince every unprejudiced mind that the defendant did not have a fair and impartial trial, and that the rulings of the court were highly prejudicial.” We cannot see any merit in any of these assignments, and yet we do not plead guilty to prejudice in this matter, nor can we find anywhere in the record any indication of prejudice on the part of the learned trial judge.

The first assignment of error claims that it was prejudicial error for the trial court to refuse to permit the defendant to introduce testimony showing that his reputation as to chastity and virtue prior to being arrested was good. In the case of State v. Brandner, 21 N. D. 310, 130 N. W. 941, the court has held that a bastardy proceeding which is brought under chapter 5 of the Code of Criminal Procedure is quasi-criminal in its nature, but that the legislature has provided in § 9653, Eev. Codes 1905, and had the constitutional right to provide, that the trial should be governed by the law regulating civil actions. Such being the case, we seem to have no option but to hold that in such cases the civil rule as to the admissibility of character evidence prevails ; and that according to such rule, and except in the case of libel and slander, such evidence is inadmissible, seems to be overwhelmingly, if not universally conceded. Jones, Ev. § 148; Stopperd v. Nierle, 45 Neb. 105, 63 N. W. 382; Walker v. State, 6 Blackf. 1; Houser v. State, 93 Ind. 228; Low v. Mitchell, 18 Me. 372; 5 Cyc. 662; Sidelinger v. Bucklin, 64 Me. 371; 3 Am. & Eng. Enc. Law, 884.

The cases cited by counsel for respondent, indeed, are all strictly criminal cases, involving offenses such as murder, larceny, and assault and battery; and though, in addition thereto we have been able to find the cases of Hawkins v. State, 21 N. J. L. 630, Dally v. Wood-bridge Overseers, 21 N. J. L. 491, and Webb v. Hill, 115 N. Y. Supp. 267, which seems to hold to a contrary doctrine (and these are all which we can find), all of them treat the action as criminal, or at least quasi-criminal, and in none of them is to be found a reference to a statute such as ours, which provides that “the trial of such proceedings . . . shall be governed by the law regulating civil actions.” Rev. Codes 1905, § 9653. The case at bar, indeed, seems to come squarely within the rule that in a civil action (and though quasi-criminal in its nature this action, as far as procedure is concerned, must be treated as a civil one), and except iff the cases of slander and libel, the character of the defendant is not in issue, and that evidence in relation thereto is therefore inadmissible. Jones, Ev. § 148.

We find no reversible error in the rulings of the trial court on the cross-examination of the plaintiff’s witness, Dr. Chagnon. It is argued that the doctor had testified on direct examination that the normal period of gestation is 270 days; that the medical authorities and physicians laid down as a minimum and maximum, 270, 260, and 265 days, or a few days over. He then testified, over the objection of the defendant, that it was a fact that some of the physicians and textbooks laid down a minimum as low as 249 or 285 days. lie then testified that a child could be born at seven months, or eight months, and live, and that in his opinion, from the character of the child with respect to the quality of its nails and hair, it was a normal child.

On the cross-examination the following took place.

Defendant’s counsel: Q. Let’s see if you will agree with what I am going to read to you (reads). “The duration of pregnancy has an important bearing upon the questions of legitimacy and paternity. The signs of pregnancy, time of quickening, etc., have already been considered in another connection.”

Plaintiff’s counsel: Just a minute. If the court please, we object to this as not proper cross-examination. It doesn’t seem to me counsel should read this. . . .

The court: Let’s see the hook, and I can see just what is coming.

Plaintiff’s counsel: Our objection is that it is not proper to use a medical book of this character on cross-examination.

The Court: Objection sustained.

Defendant’s counsel: I would like to make a little offer of proof.

The Court: Well, all you want to do is to read from a hook. You can ask him any question you have a mind to, bearing upon that subject, but the only extent of this rule is that you can’t read from the book.

Defendant’s counsel: I can’t use the book?

The Court: That is the point; you can’t use the book. You can ask any question as to the subject-matter in controversy, but you can’t read from the book.

Defendant’s counsel: Then" I understand, your Honor, it isn’t permissible to examine an expert witness as to whether or not he agrees with certain language that is laid down in a treatise; is that the extent of your Honor’s ruling ?

The Court: You can ask that, but you can’t read from the book.

Defendant’s counsel: The defendant now offers to prove hy questions to be put to this witness, based on the testimony of the other authors, that there isn’t a case on record of a full-grown child where the period of gestation was less than 265 days, and that in the case at bar the child was a full-grown child, and that the rule at common law and in the civil codes of the country fixes the period of gestation at 280 days, or, as some books say, 28 weeks, not less; and from that to 40 weeks; and I offer to read from a standard work on medical jurisprudence, and there form part of a hypothetical question to be put to the witness that the percentage as fixed by Athel’s Table shows that the general rule is not less than 266 days, and that the maximum rule is 280 days, and that a child bom at a period of 249 days would not and could not, according to medical jurisprudence, be a normal child, but would be an abnormal child; and I also in this connection maintain that in the direct examination of the witness by the state’s counsel I am entitled under the rules of legitimate cross-examination to examine this witness thoroughly on that subject in the line that I have suggested to the court.

Plaintiff’s counsel': Objected to upon the ground that it is not proper cross-examination, and irrelevant and immaterial, and that the rules of law do not permit the use of text-books in the manner sought to be used by counsel in his offer, and that the effect of the offer is to impeach the witness by the use of a text-book, and it comes squarely within the rule as laid down by all the authorities.

The Court: The court in ruling irpon this question makes the following statement: At the time this objection was first interposed, counsel for the defendant, as will appear from the record, had in his hands a book entitled “Medical Jurisprudence, Student’s Series, by M. D. Ewell,” and had said book open at page 190, and was readiñg from ¶ 2 on said page, and, as stated by counsel, expected to read the balance of that paragraph, including what Dr. Tiddig said. The court believes that this method of procedure is contrary to the rule as laid down by Jones and other authorities, and especially as found in Jones on Evidence, 2d ed. p. 782, wherein the author states: “It would be a mere evasion of the general rule under discussion if counsel were allowed on cross-examination to read to the witness portions of such works, and to ask if he concurred in or differed from the opinions there expressed; hence this is not allowed.” The same being supported by Marshall v. Brown, 50 Mich. 148, 15 N. W. 55; People v. Millard, 53 Mich. 63, 18 N. W. 562; Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 678; State v. Winter, 72 Iowa, 627, 34 N. W. 495, as appears by the note on said page 732. For the purpose of not being misunderstood, the court further states that he understands the rule will permit counsel for the defendant to ask the witness some of the questions which have been couched in his recent offer, with reference to the period of gestation, — as to the knowledge of the witness with reference thereto, — as based upon his study of the several works. That if he desires to offer any hook in evidence the attention of the witness must he called directly to the statement of each author, and that the witness must have contradicted the author before the authority could be produced, and the same read to the jury. Now I think that it is also included within the rule.

Plaintiff’s counsel: But I think the court has it wrong.

The Court: I don’t so understand it.

Plaintiff’s counsel: The rule is here stated, starting at the bottom of page 731 (reads). “But with reference to offering books in evidence the rule is that when an expert has given an opinion and cited a treatise as his authority, the book cited may be offered in evidence by the adverse party as impeaching testimony!”

The Court': That is what I intended to say.

Defendant’s counsel: Counsel for the defendant desires to have the record show that he has no intention of offering this book in evidence; that his intention is to read from this book and from other like authorities, standard works on this subject, certain hypothetical questions to be put to this witness as applied to the case at bar, for the purpose of showing the jury that the child that is in controversy here was a full-grown normal child, and that under all the sound rules must have been begotten at a period of not less than 265 days and not to exceed 285 days, and that from the appearance of the child the witness is unahle to state whether it was a 280-day child or 265-day child.

The Court: Well, I think that the record is complete enough. You don’t misunderstand me, do you Mr. Hildreth ?

Mr. Hildreth: No sir, I don’t. I understand. I offer to examine this witness along the line above stated.

Plaintiff’s counsel: This offer is objected to on the ground that the use of the text-books in the manner contemplated, namely, using them in framing hypothetical questions, is a mere evasion of the rule as stated in Mr. Jones, and the effect is to use the text-book in impeachment of the witness on cross-examination, and that if any hypothetical questions are proper on cross-examination, or ■ are to be framed and put to the witness, the counsel should not use, in the presence of the jury, the text-book in framing the questions, for the reason that it will necessarily and unquestionably have the direct effect upon the jury of leading them to believe that the text-book which the counsel is using and from which he frames his hypothetical questions are in direct conflict. Might just as well offer in evidence the text-book.

The Court: Objection sustained.

Counsel for defendant claims that he was unduly restrained in his cross-examination. We do not so hold, however, and have merely cited the proceedings at length because of the strenuousness of counsel’s contention, and his constant imputation of prejudice on the part of the trial court. If counsel for defendant desired to refute the testimony of the witness by the use of the books in question, he should have first asked the witness if he based his opinion on any medical works, and, if so, on what; and then, and not till then, was he entitled to offer the book, or any book, in evidence for the purpose of impeaching this testimony. The rule is too well established to need amplification here. See Jones, Ev. § 578; Abbott, Civil Trial Brief, 329. And it is equally well established that it would be a mere evasion of the general rule if counsel were allowed on cross-examination to read to the witness portions of medical works, and to ask him if he concurred in or differed from the opinions there expressed. Marshall v. Brown, 50 Mich. 148, 15 N. W. 55; People v. Millard, 53 Mich. 63, 18 N. W. 562; Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 678; State v. Winters, 72 Iowa, 627, 34 N. W. 475. Such procedure, indeed, would be nothing more or less than impeaching the witness by a text-book on which he had in no way relied, and would be the same as offering in evidence the text-book read from. Jones, Ev. 2d ed. § 579.

But counsel for defendant further complains that in spite of this ruling the court permitted the plaintiff to introduce a certain work of Professor Edgar, upon the cross-examination of defendant’s witness, Dr. Yidal. The ruling of the learned trial judge, however, was entirely correct, and it merely serves to illustrate the point under consideration, and to make clear the distinction which is made by the authorities, and which was emphasized by the trial court; for in this instance the attention of the witness had been directly called to the book in question, and the matter came fully within the rule laid down by the authorities. A perusal of the record will, we believe, make this clear to all.

It is “Cross-Examination by counsel for plaintiff.

Q. Doctor, this question of the average period of gestation is a question concerning which there is a great deal of dispute in the medical profession, is there not? I mean by that, great deal of difference of opinion ?

A. There is a few days. Matter of a few days in — between the best authorities; matter of two or three days one way or another. That is, some of the authorities lay down a lower average of gestation than others. That is true. I think I am familiar with a great number of authorities upon what the authorities hold upon this subject. I am familiar with what Professor Edgar holds. He is professor of Obstetrics in Cornell Hniversity. He is a leading authority on the subject in this country, and a very good authority.

Q. Do you recall what he lays down as the average period ?

Defendant’s counsel: Objected to as incompetent, irrelevant, and immaterial; improper cross-examination, and I assume that it is practically what I attempted to ask.

By the Court: Now, it just illustrates the objection. It is a perfect illustration of my rule. The objection is overruled. You may answer the question.

Exception by defendant.

A. I believe 274 days. I am not positive; but that would be my opinion. I am not positive that it wasn’t 272, but that would be my impression.

Q. Well, to refresh your recollection, doctor, I will call your attention to the following language found at page 144 of Professor Edgar’s work on the practice of obstetrics, 3d edition — 1911 edition— which language reads as follows:

Defendant’s counsel: Just a moment. I object to the counsel’s using the book to cross-examine this witness. I haven’t been permitted to use any books, and I object to the testimony as being incompetent, irrelevant, and immaterial, and improper cross-examination. I haven’t referred to this book in no way, and when I sought to ask him about this book, as I understood the Court to rule, I could not refer to it.

By the Court: Again the court holds with the rule laid down by Jones and others. This is cross-examination, and under the rule in cross-examination this is permissible. You may answer the question.

Plaintiff’s counsel: I haven’t quite finished. I didn’t want to read until the court rules. (Continued reading): “We learn from experience that the average apparent duration of pregnancy is ten lunar or nine calendar months, or 40 weeks or 280 days from the beginning of the last menstrual period, or 272 days from the date of conception.” Now, from that language, doctor, would you say that the average period of gestation from the date of conception, laid down by Professor Edgar, was 274 days or 272 days?

A. 272.

Counsel for defendant: Objected to — wait a minute, doctor. Objected to as incompetent, irrelevant, and immaterial; improper cross-examination.

The Court': Overruled. You may answer.

Exception by defendant.

A. 272. It reads from the book; it must be right. My. impression was 274. I have a good many authorities; I haven’t taken pains to look them up for a long time. Yes, the authorities differ. Some of them place it as low as 268 days; some 268 days; some 269 days; some 272 days. I testified that in my opinion the average number of days of gestation was 278. That is figuring from the first day of the last menstrual period. Assuming that, a woman’s menstrual period- was November 16, 1911, you would figure this 278 days from that day. Now if the intercourse took place November 25th, or nine days later, then if I was going to figure the period of gestation from the date of intercourse, I would subtract 9 days from 278. That would make it 269 days from- the period of intercourse to the date the child was born. But the 278 days I gave as a general rule dates from the first day of the menstrual period preceding, and if I was going to figure from the date of intercourse I would, of course, deduct the days between.

Q. And in the supposed case it would make it 269 days as the actual period of gestation from the time of intercourse to the date of birth. Now, doctor, in arriving at this matter of average period of gestation, it is arrived at, is it not, by taking a number of cases and averaging them up ?

A. Yes sir. That is all it amounts to. Supposing Professor Edgar in fixing his rule would take 1,000 cases of pregnancy and childbirth, there would be a number of cases that would be a great many days less than the average. Some of them, say, 250 days; some of them 252 days; some of them 254 days; some of them 258 days, and as you got up to the average the number of cases would increase at a given date. Some of them would run 274, 276, and so on, and he would take and add them all together, and divide it by the number of cases, and get the average.

We think there was no error in permitting the complaining witness to testify that the defendant had, before the acts of intercourse, complained of, led her to believe that they were to be married. This evidence tended to show the relationship of the parties, and was corroborative in its nature, just as much so in fact as evidence that the parties had been seen together at or about the times of the alleged inter-courses.

There is no merit in the objection that defendant’s counsel was not allowed to cross-examine the complainant in regard to her relations with the man Anderson. Even if the privilege was improperly denied in the first instance, the error, if any, was entirely cured by the granting of the privilege, and the full use thereof, later on in the trial, and when the plaintiff was recalled. Nor was there any merit in the contention that defendant was not allowed to question plaintiff as to presents alleged to have been given to her. The questions were very general, and hardly confined to the times in issue. There, too, must be some reasonable limit to cross-examination; and receiving presents is hardly in itself evidence of illicit relationship.

There is certainly no merit in appellant’s contention that the trial court erred in his remarks to counsel during his argument to the jury, or that he thereby “emphasized his prejudice that he had manifested during the case.” During counsel’s argument he said to the jury: “This is II. E. Miller. I could say more. I couldn’t say less. He is an absolutely unreliable man, and an absolutely unreliable police magistrate.” To this counsel for the state objects, saying; “Object to that statement. No evidence in the record to substantiate any such statement.” The court thereupon said: “I think you will have to be a little careful,. Mr. Hildreth, in the use of your words. You have a certain latitude, but beyond that, please don’t go.” Counsel for defendant then responded: “I didn’t think I was going beyond the line,” and the court continued: “Getting so close to it, it was dangerous.” We really do not see what less the court could have said under the circumstances. In fact, we believe that he would have been justified in saying a great deal more. The remarks of counsel for the defendant were, indeed, entirely improper. There was, it is true, some question as to whether the witness Miller’s version of what took place in the justice’s court was the correct one, but there was absolutely no evidence in the record at all that he was “an absolutely unreliable man, and an absolutely unreliable police magistrateWitnesses have at least some rights which counsel are bound to respect, and our legal system will soon break down if one subpoenaed in a lawsuit, and with no opportunity for a hearing or a defense, is subjected to the danger of not merely having his testimony in the particular lawsuit criticized and refuted, but of having his personal integrity and professional or business career assailed. The remarks of counsel, indeed, were not even “close to the line.” They went far beyond it, and if the reálly restrained comment of the presiding judge was evidence of prejudice on his part, we might just as well do away with orderly court trials altogether, and return once more to the primitive but speedy and character-saving procedure of trial by battle. It is time, indeed, for all of us to cease imputing prejudice, and to realize that an honest difference of opinion can exist without prejudice and without ulterior motive.

It was not error to refuse to allow the complainant to testify on cross-examination as to whether she had asked the defendant to go over to Moorhead with her. The question in the first place was not proper cross-examination, as it did not touch upon any subject which was treated upon in the direct examination; in the second place, the time alleged was outside of the period of gestation, and the evidence could only have been asked for the purpose of injuring the plaintiff’s general reputation for chastity by proof of a specific act of unehastity, which cannot be done, for the -simple reason that the very nature of the proceeding is at least to some extent an admission of unehastity,. and such evidence would be merely diverting attention from the principal question to be tried. Jones, Ev. § 153; Rawles v. State, 56 Ind. 433; Davison v. Cruse, 47 Neb. 829, 66 N. W. 823. On the other hand, it was not improper to allow the witness to testify as to the giving: of a ring by defendant to her, and the conversation relating thereto. Foundation for this evidence was not only laid in the cross-examination by defendant’s counsel himself, but it was competent to show the general relationship of the parties.

We do not agree with counsel for appellant that the evidence is not sufficient to sustain the verdict. The plaintiff positively swore to-sexual intercourse with the defendant on November 27th 1911; that she had a menstrual period on November 16th, and did not have it on December 16th, nor until after the child was born, on August 10, 1912. There, too, is corroborating evidence in the record, which, though not. very strong or very conclusive, has yet some weight. We have no right to interfere with the verdict of the jury. State v. Peoples, 9 N. D. 146, 82 N. W. 749. It seems generally to be held, indeed, that in the absence of a statute it is not necessary to a conviction that the testimony of the complainant should be corroborated by other evidence. 2 Ene. Ev. 355.

Counsel next makes a general statement to the effect that the court’s-charge is erroneous. He, however, points out- no particular portion of the charge which is subject to criticism. Nor does he give us any idea wherein its defects consist. This is nothing more or less than an abandonment of the objection. The same is true of the objection that, the court erred in refusing to give the instructions asked for, and the assignment of error that “the court erred in denying the requests, marked 1, 2, and 3” of the defendant, in the instructions to the jury. All that counsel says in his brief upon this proposition is that “these requests and instructions, when taken together, clearly indicate that, the rights of the defendant were not safeguarded by instructions which the court should have given to the jury in a case of this character.”' It would certainly seem that this court should have something more-definite to pass upon, and that counsel for the respondent should have some specific allegations with which he could join issue.

Nor is there any merit in appellant’s contention that no evidence was taken as to the earning capacity of the parties to the suit, nor of the “assistance” that the mother might be able to furnish in the maintenance and education of the child, and that therefore the judgment is invalid which orders the defendant to pay the sum of $120 a year until the 10th day of August, 1917, and $150 from that date to the 10th day of August, 1928. The statute (§ 9655, Rev. Codes 1905) expressly provides that the court, in cases of a verdict of guilty, '“shall render such judgment as may seem necessary to secure, with the assistance of the mother, the maintenance and education of such child, until such time as the child is likely to be able to support itself. . . . The court may at any time, upon the motion of either party, upon ten days’ notice to the other party, vacate or modify such judgment, as justice may require.” This statute, of course, presupposes that the court shall reasonably acquaint himself with the necessities of the case, but it nowhere provides for the method nor how the information shall be obtained. Here the station in life, age, and occupations of all of the parties interested had been fully exposed upon the trial, and there was clearly no necessity for taking any further testimony. The sums ordered to be paid were certainly not excessive. So, too, not only did defendant’s counsel, who appears to have been present at the time, take no exception to the methods pursued by the trial court, or make or ask permission to make any proof upon the subject, but the statute expressly provides “that the court may at any time, upon the motion of either party, upon ten days’ notice to the other, vacate or modify such judgment, as justice may require.”

' The judgment of the District Court is affirmed.