This case involved only the determination by the jury of a disputed question of fact upon conflicting evidence. An examination of the evidence is convincing that the jury was warranted in believing that the state's witnesses told the truth and that the witnesses for the defense not only did not do so, but that the defense viewed as a whole had, as we said in State v. Hankins, 193 Minn. 375, 379, 258 N.W. 578, 580, the earmarks of "home manufacture."
As we pointed out in State v. Schmidt, 155 Minn. 440,193 N.W. 954, where there was a similar fact dispute, the appellate court should view the evidence in the light of the trial atmosphere, as the jury did.
Here, there had been a preliminary hearing, at which complainant's version of the facts had been revealed and explored. She there *Page 306 testified that she became pregnant as the result of intercourse with defendant which occurred at about four o'clock in the afternoon of June 30, 1945, in the farmhouse of her brother-in-law and sister, George and Melvina Engstrom, while they were in Renville to consult a physician concerning Melvina's pregnancy. Complainant had been employed by and lived with George and Melvina. She also testified at the hearing that she went out on week ends with defendant regularly from July 21 until November and that on every such occasion they had intercourse.
At the trial in the district court complainant's version was the same as it was at the preliminary hearing. A physician and surgeon testified that she might have become pregnant as the result of intercourse on either June 30, as she claimed, or on July 21. The evidence of the state was ample to sustain a conviction. State v. Tofteland, 216 Minn. 128,11 N.W.2d 826; State v. McIlraith, 212 Minn. 536, 4 N.W.2d 342; State v. Hanke, 202 Minn. 47, 277 N.W. 364; State v. Cotter,167 Minn. 263, 209 N.W. 4; State v. Schmidt, 155 Minn. 440,193 N.W. 954; 1 Dunnell, Dig. Supp. §§ 838, 840.
The defense undertook to meet and to overcome the state's case by what it hoped would appear to the jury to be indisputable proof that defendant was not only not the father of the child, but also that he never had sexual intercourse with complainant. The defense's evidence consisted of evidence to show (1) alibis not only for the acts of intercourse occurring on June 30 and July 21, but for every occasion during July, August, and September testified to by complainant; (2) lack of opportunity for sexual intercourse amounting to insulation of defendant from complainant; and (3) contradiction of practically everything complainant testified to on direct examination. The witnesses to substantiate the defense included defendant, some of his relatives, and some of him friends.
The alibi witnesses consisted of defendant, his sister Mabel Sandberg, who was then unmarried, Ed. Sandberg, who later married her, Stanley Johnson, and Ranco Negen. Defendant testified that because it rained on June 30 he worked all day around his barnyard, which was about one and one-half miles distant from George's farm; *Page 307 that he did not go to George's farm on that day; that he did not have sexual intercourse with complainant on that day or at any other time; that in the evening he and Mabel, who lived with him, went to Renville; that on July 21 he, Johnson, and Negen went to Little Falls to buy some pigs; that they returned late in the afternoon; that after dinner he and Mabel went to Renville, where they spent the evening together; and that he had not been out with complainant at any time, except once in November 1945, when she took a trip to Renville with him in his car. Mabel testified that she knew that defendant was working around his own farm during the entire day of June 30; that in the evening defendant and she went to Renville, where they attended a circus; that on the night of July 21 defendant and she were together in Renville; that she knew that they were together that night because it was a Saturday night and because, as she said, "I always went with him most Saturday and Sunday nights." Ed. Sandberg, who was then Mabel's so-called "boy friend," testified that defendant and Mabel went to Renville together every Saturday and Sunday night during June, July, and August 1945, and that on those nights Mabel and he sat in his car while defendant went about town. Johnson testified about the pig-buying trip. Negen testified that defendant and he were together generally on week ends, and that, while they may not have been together on some Saturday nights, they were always together on Sunday nights; and that during the evening on July 21 defendant and he were together drinking beer in a restaurant in Renville. Not only did Ranco claim to remember this particular day, but also that he distinctly remembered every week end in 1947 up to the time of trial, every one in 1946, "quite a few" of the week ends in 1945, and "about some of every week end" in 1944.
To show lack of opportunity for sexual intercourse between defendant and complainant in the farmhouse on June 30, George and Melvina testified that they were at home during the afternoon and went to Renville in the evening and not during the afternoon, as complainant testified. Their versions as to what they did in the evening do not agree. Melvina testified that they first went to the *Page 308 doctor's office; that afterward they went to George's car near the circus; and that she sat in the car alone while George and their children, one about six and the other about three years old, attended the circus. George's version was the same, except that he made no mention of having been to the doctor's office. Neither of them testified as to the name of the doctor. Neither the doctor nor his office assistant was called as a witness, nor were his office records produced to show when, if at all, Melvina was in his office. On the motion for a new trial, the defense attempted to bolster the testimony of George and Melvina that they were at the circus in the evening by the testimony not of the doctor or his office assistant or by his records, but by three witnesses who claimed to have seen George and the children at the circus. To show entire lack of opportunity for sexual intercourse between defendant and complainant, Melvina testified that she exercised such vigilance and watchfulness over defendant and complainant that they had no opportunity for being together or for conversation without her knowing about it, much less for sexual intercourse. Mabel gave similar testimony as to her vigilance and watchfulness over defendant. Then, on top of this, defendant himself testified that he had never been out with complainant, and other defense witnesses gave negative testimony that they had never seen defendant and complainant out together.
In addition to the contradiction of complainant's testimony implicit in the defense testimony concerning the alibis and the lack of opportunity for the parties to have sexual intercourse, the defense undertook to contradict her with respect to other matters. For example, on direct examination defendant not only denied complainant's testimony to the effect that during the fall of 1945, when they were sitting in his car, she told him that she was pregnant as a result of their relations and that she then demanded that he marry her, but also all knowledge of the fact that complainant had been pregnant until after the child was born, when she notified him of the fact by letter. On cross-examination, however, he testified that in November 1945, when she was hanging out clothes, he told *Page 309 her, "You look like you are pregnant." At that time she obviously was pregnant.
In rebuttal, complainant testified that she and defendant were together in a restaurant in Renville under such circumstances that Ed. Sandberg saw them there. Further, she testified that on another occasion she was with defendant, his cousin Lois Hillstrom, and Negen, and that on that occasion defendant wanted her to sit in the back seat of his car with Negen, but that she declined to do so. Neither Sandberg, defendant, Lois, nor Negen was called to deny complainant's testimony in the respects mentioned.
1. The jury was warranted in believing that the testimony concerning the alibis was false in toto. Because there was basis for believing that defendant and Mabel had testified falsely with respect to other matters, the jury might well have believed them to be entirely unworthy of belief, and, because that was true, the jury was justified in disbelieving their testimony as to the alibi for June 30.
The testimony concerning the alibi for July 21 was absolutely incredible. Here, the versions of the different witnesses not only vary, but they were also in double and triple conflict. Mabel testified that defendant and she were together in Renville. Ed. Sandberg testified that Mabel and he were together in his car at the very time Mabel said defendant and she were together. On top of all that, Negen testified that defendant and he were in a restaurant at that very time drinking beer. Now, it is utterly impossible that at one and the same time defendant could be with Mabel in Renville and with Negen in a restaurant drinking beer and that Mabel could be about town with defendant and with Ed. Sandberg in his car. The same is true of the alibis for the other Saturday nights. Mabel had defendant with her most Saturday nights; Negen had defendant with him every Sunday night andsome Saturday nights; and Ed. Sandberg had Mabel with him in his car every Saturday night. Of course, at one and the same time defendant could not be with both Negen and Mabel, and Mabel could not be with both defendant and Sandberg. *Page 310
An alibi is a valid defense, and when it is established it is a complete one. But an alibi is easily fabricated, and, because that is true, the rule of law corresponds with common experience that the testimony in support of an alibi should be subjected to the most searching scrutiny. State v. Duddy,152 Minn. 179, 188 N.W. 261; State v. Minot, 79 Minn. 118,81 N.W. 753; 2 Dunnell, Dig. Supp. § 2448. Experience has shown that in practice many false alibis are asserted. The defense of alibi is viewed with suspicion by those familiar with such matters. In police and prosecuting circles, the defense of alibi is dubiously and suggestively known as the "hip pocket defense," because of the facility with which an alibi can be produced — because one can be fabricated for instant use. The legislature by M. S. A. 630.14 has taken notice of these evils and has provided that in criminal cases the defendant may be required to give advance notice stating certain particulars of the defense of alibi.
2. Where a witness has shown a disposition not to tell the truth, the jury may reject his testimony in favor of a contrary version which appears to be credible. Grengs v. Erickson,225 Minn. 153, 29 N.W.2d 881; State v. Hankins, 193 Minn. 375,258 N.W. 578, supra. Here, both defendant and Mabel testified falsely with respect to the alibis. Furthermore, defendant testified falsely concerning his lack of knowledge of complainant's pregnancy prior to the birth of the child. His own testimony shows that he knew about it when he commented about the fact to complainant when she was hanging out clothes some months before the child was born that she appeared to be pregnant. Consequently, the jury was warranted in disbelieving their testimony concerning the alibi for June 30.
3. As we said in M M Securities Co. v. Dirnberger,190 Minn. 57, 62, 250 N.W. 801, 803:
"So the law has come to be that an unexplained failure of a party to produce as a witness a person who knew the facts and who presumably would testify favorably to him justifies an unfavorable jury inference." *Page 311
That is the settled law here and elsewhere. Shockman v. Union Transfer Co. 220 Minn. 334, 19 N.W.2d 812; Waters v. Fiebelkorn, 216 Minn. 489, 13 N.W.2d 461; Schultz v. Swift Co. 210 Minn. 533, 299 N.W. 7; Vorlicky v. Metropolitan L. Ins. Co. 206 Minn. 34, 287 N.W. 109; Fonda v. St. Paul City Ry. Co. 71 Minn. 438, 74 N.W. 166, 70 A.S.R. 341; 2 Dunnell, Dig. Supp. § 3444; 20 Am. Jur., Evidence, §§ 187, 193. Where a timely request is made for an instruction embodying the rule, it should be granted. Fonda v. St. Paul City Ry. Co.supra.
Here, defendant failed to call the doctor whom Melvina claims she visited on the night of June 30, or his assistant, and failed to produce the doctor's office records. Under the rule of Price v. Standard L. A. Ins. Co. 90 Minn. 264,95 N.W. 1118, such evidence could have been produced even as against Melvina's objection. There is no reason to believe that she would have objected. On the contrary, because she had become a partisan for defendant, the inference was permissible that she would have consented. The testimony of the doctor or his assistant and his office records would have settled conclusively whether Melvina was at the doctor's office in the evening, as she claimed, or in the afternoon, as complainant claimed. Failure to produce such proofs permitted the jury to infer that if the testimony and records had been produced they would have been unfavorable to defendant. In that view, the jury was warranted in rejecting not only Melvina's testimony that she and George went into town in the evening, when she claims she went to the doctor's office, and not in the afternoon, but also their testimony that they were at home during the afternoon when complainant claims sexual intercourse with defendant occurred, because by their testimony they made the truth of their being at home during the afternoon depend on whether Melvina went to see the doctor in the evening.
Likewise, the same inference might have been drawn because of defendant's failure to recall Ed. Sandberg to the stand to contradict complainant's testimony to the effect that he saw her and defendant together in the restaurant in Renville, and because of his failure to recall Negen to contradict her testimony to the effect that she, defendant, *Page 312 Negen, and Lois Hillstrom were together in defendant's car. On top of all this, a further inference to the same effect was permissible because of defendant's failure to call Lois at all. As Mr. Justice Butler said in Mammoth Oil Co. v. United States,275 U.S. 13, 51, 48 S. Ct. 1, 9, 72 L. ed. 137, 151, quoting Lord Mansfield in Blatch v. Archer, Cowp. pt. 1, pp. 63, 65, 98 Reprint, 968, "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." So, it was here.
4. Furthermore, defendant's failure to take the stand and contradict complainant with respect to the matters referred to in the preceding paragraph went directly to his own credibility. State v. Spaulding, 34 Minn. 361, 25 N.W. 793.
5. Where testimony is inherently improbable, the jury may disregard it. Maas v. Midway Chevrolet Co. 219 Minn. 461,18 N.W.2d 233, 158 A.L.R. 215; Osbon v. Hartfiel, 201 Minn. 347,276 N.W. 270. Ranco Negen's testimony concerning his remarkable feats of memory was inherently improbable and might properly have been rejected under the rule. The rule has been laid down in 32 C.J.S., Evidence, § 1029: "Courts have little or no faith in a witness' recollection of dates or the time of day of events if he does not reckon or fix them by means of reliable associated facts or events." The jury here was not required to attach any weight to his testimony and was justified in rejecting it altogether.
Other evidence might have been rejected under this rule. The testimony of Mabel and Melvina as to their insulation of defendant from complainant was not only improbable, but was shown to be untrue. Defendant himself testified that he talked to complainant and told her that she appeared to be pregnant, and further that he took her to Renville and return in November. All this occurred without Mabel's and Melvina's knowledge. How much more occurred without their knowledge was for the jury to say.
Likewise, the claim that there was no intimacy of any sort between complainant and defendant was shaken by the incident of defendant's remark to complainant that she appeared to be pregnant. This *Page 313 occurred casually, according to his version. The fact is that ordinarily men do not mention to women matters concerning sex, pregnancy, and the like. A sense of delicacy and propriety forbids. Such discussion is open only to those who are on terms of intimacy. Here, the jury might well have believed that such intimacy consisted of the sexual one claimed by complainant and denied by defendant.
Likewise, the claim of George and Melvina that George took their six-year-old and three-year-old children to a night performance of the circus while Melvina sat in their car might well have taxed the jury's credulity. The jury might have believed that George as a doting father would take his six-year-old son to a night performance of the circus, but it must have been well-nigh impossible to believe that he would take his three-year-old daughter, who would be sure to fall asleep and who then could have been put in an improvised bed in the car to sleep under her mother's watchful care. The taint of inherent improbability added to other infirmities so weakened their testimony as to justify the jury in rejecting it entirely.
6. Where, as here, the evidence is conflicting, the jury might consider as affecting the weight and credibility of a witness's testimony his interest or bias, or the lack thereof, blood relationship, friendship, partisanship, hostility to the adverse party, and the like. Weinstein v. Schwartz, 204 Minn. 189,283 N.W. 127; Davis v. Commonwealth, 270 Ky. 53,109 S.W.2d 2; Oldham v. Commonwealth, 228 Ky. 307,14 S.W.2d 1065; State v. Branch, 193 N.C. 621, 137 S.E. 801. The defense witnesses were relatives and friends of defendant, partisans for his acquittal, and hostile to complainant. These matters were reflected in the claims of extreme watchfulness exercised by Mabel and Melvina over defendant and complainant, defendant's unqualified denials, which he subsequently qualified, Ranco's unprecedented recollection of dates and events and the manner in which the witness testified, and Johnson's forthright testimony to such effect. A jury is under no duty of believing the testimony of such witnesses. *Page 314
7. Lastly, the demeanor and testimony of defendant and his witnesses must have disclosed that they were a discredited lot. Demeanor evidence may be of great weight in determining who is telling the truth. S. Buchsbaum Co. v. Federal Trade Comm. (7 Cir.) 153 F.2d 85.
A careful examination of the record leaves one with the conviction that complainant's version of the facts withstood the assaults made upon it by the defense. The jury witnessed a complete denouement and collapse of what was supposed to be a watertight defense — the alibis were proved to be false; the proof of lack of opportunity for defendant and complainant to have sexual intercourse was shown to be so untrustworthy as to be incredible; and the contradictions completely failed. At the finish, the defense lacked the vitality to deny complainant's testimony that she not only had been out with defendant, the denial of which was asserted as an important feature of the defense, but also that she had been out with him, his relatives, and his friends. That was a challenge for the defense to meet, but one which it declined. Under the circumstances, what was the jury to infer? Was it that defendant himself could not take the stand again without the risk of making further damaging admissions such as the one concerning his knowledge of complainant's pregnancy, which showed that he had testified falsely when he testified to a lack thereof, and those concerning the trip to Renville with complainant and the conversation with her in the yard, which showed that Mabel's and Melvina's claims that they had insulated defendant from complainant were false? Was it that Ed. Sandberg's testimony had already scrambled the alibis and that further testimony by him might do only further harm? Was it that, like the rotten apple in the barrel spreading its taint, Negen by his untruthfulness had created belief that the whole defense was tainted with it and that recalling him might not only accentuate that fact, but also, because he had been thoroughly discredited, that his testimony might be entirely useless? Was it that Lois would not give false testimony to repair an already broken defense? Johnson's testimony showed that he had nothing substantive to contribute by *Page 315 way of further testimony. The jury might well have concluded that the defense itself realized that its claims had been exposed as false; that its witnesses had been discredited; and that it had failed utterly. It might well have concluded that the complainant's version was true and that it had withstood all the assaults made upon it. That being true, the conviction should stand.