Page:North Dakota Reports (vol. 48).pdf/757

 delivered by the unmarried woman, Anna Moser, and that the same was begotten by the defendant, then it is immaterial as to the particular date charged in the complaint. The question is, Was such a child born, and, if it was, was the defendant the father of the same?"

These two assignments of error are both predicated upon the proposition that the complaint alleged that the child was "begotten by the defendant, on or about the 22d day of June, 1920." And it is asserted that the date so alleged was material; that it was improper to admit evidence relating to an act of intercourse said to have occurred on May 11th; and that it was error to permit the jury to find a verdict against the defendant on such evidence.

In our opinion the assignments are not well taken. In other words, we are of the opinion that the evidence relating to the act of intercourse said to have occurred on May 11, 1920 was admissible, and also that, under the evidence in this case, the instruction given was not erroneous.

This is not a case like State v. Ryan, 78 Minn. 218, 80 N. W. 962, cited and relied upon by the defendant, or Menn v. State, 132 Wis. 61, 112 N. W. 38, where the complaining witness fixed the act of sexual intercourse in connection with some specified event or occasion, so that the proof, in effect, not only affirmed that the child was begotten by the accused at a specified time and place, but, also, negatived the idea that it could have been begotten by the accused on any other date than the one so specified. That is not the situation here. Ordinarily, the exact day on which the child was begotten is not "material except as it bears on the principal question, which is whether or not the accused is the father of the child." 7 C. J. 995; 2 Ency. Ev. 252. See, also, Duhamell v. Ducette, 118 Mass. 569; Francis v. Rosa, 151 Mass. 532, 24 N. E. 1024; Ross v. People, 34 Ill. App. 21; Holcomb v. People, 79 Ill. 409. And, while the question does not seem to have been squarely raised in this state, that is the rule which has been followed by this court. See State v. Peoples, 9 N. D. 146, 148, 149, 82 N. W. 749; State v. Brandner, 21 N. D. 310, 316, 130 N. W. 941.

In this case the defendant moved for a new trial. The motion was not made on the ground of newly discovered evidence. And we fail to find anything to indicate that the defendant was taken by surprise by the evidence relating to the act of sexual intercourse alleged to have taken place on May 11th, or that he was prevented from presenting his entire defense in this case.