State ex rel. Sommerfield v. Stilwell

POLLEY, J. This appeal grows out of a proceding in bas.-tardy.. .The prosecutrix was deliyered of a child on the 2d day of April, 1920. As soon there after as1 she was able to be about she [608] filed a complaint against the appellant, charging him with 'being the father of the child. By some oversight in preparing the complaint the act of intercourse that resulted in the birth of the child was alleged to have taken place on the 4'th day of July, 1920, three months after the child was born. That the child in question was born to the prosecutrix on or about the time alleged in the ■complaint is not disputed, and the proof showed that the act of intercourse took place on the 4th day of July, 1919, one year prior to the date alleged in the complaint. It is contended by appellant that this constitutes a variance between the pleading and the proof, and that it was error to admit evidence of an act of intercourse on the 4th day of July, 19119. Some 15 assignments of error and many pages of the printed record are devoted to this one question. It is not shown that appellant was in any wise prejudiced by such variance. It is not even claimed that he was prejudiced nor misled thereby, nor prevented from having a fair trial. The allegation itself was wholly unnecessafy. It is not required by the statute, which prescribes what shall be charged in the complaint, and an allegation that a child was born on or about a particular day is sufficient to admit evidence that an act of sexual intercourse took place about the length of the period of gestation prior to such birth. In fact the question of variance as presented by this record is so utterly without merit that we deem it an imposition on the court to compel us to wade through this whole record for fear that something of merit might escape our notice. See, also, State v. Papernak, 44 S. D. 31, 181 N. W. 955. The court in the course of its instructions to the jury said:' “No criminal penalties such as fine or imprisonment attaches in the event the defendant is found to be the father of the child, the purpose of the proceeding, as I have said, is to determine whether or not the defendant is the father, and, if he is, to require him to aid in its support.” This instruction is excepted to on the ground that it called to the attention of the jury what might be the judgment of the court, regardless of the verdict. While this instruction might more properly have been omitted, we are unable to see how or in what way’it prejudiced the appellant.. The court properly instructed the jury that the prosecutrix had the burden of [609] proving that the appellant was the father of the child in question by a preponderance of the evidence, and that if in their judgment the evidence was evenly balanced they, must find in favor of the appellant. This made plain the duty of the jury, and appellant was not prejudiced .by the instruction complained, of. 'During the trial the court over appellant’s objection permitted the respondent to call appellant to the witness stand for cross-examination under the statute. This was excepted to on the ground that it compelled the appellant to testify against himself, and thereby violated his constitutional rights. This exception is based upon the theory that the proceeding is criminal in its nature, and that in a criminal trial a defendant cannot be compelled to testify against himself. This question is no longer open for consideration in this court. In State v. Pickering, 29 S. D. 207, 136 N. W. 105, 40 L. R. A. (N. S.) 144, this court held that bastardy proceedings are not criminal nor quasi criminal, but are purely civil and triable according to the rules applicable to the trial of other civil actions. The North Dakota court reached the same conclusion under a similar statute. State v. Brunette, 28 N. D. 539, 150 N. W. 271, Ann. Cas. 1917E, 340. Other assignments of appellant have been examined, but they present nothing that merits consideration. The judgment and order appealed from are affirmed.