Benham v. State ex rel. Richardson
| Decision Date | 03 November 1883 |
| Docket Number | 9627 |
| Citation | 91 Ind. 82 |
| Parties | Benham v. State, ex rel. Richardson |
| Court | Indiana Supreme Court |
From the Ripley Circuit Court.
The judgment is reversed, at the appellee's costs, with instructions to grant a new trial.
S. M Jones, J. L. Benham and A. Stockinger, for appellant.
This was a prosecution for bastardy. Judgment for the State. A motion for a new trial was overruled, and this ruling is assigned as error. This motion embraced many reasons, none of which need be noticed, except the ruling of the court in refusing to allow the defendant to ask the relatrix, upon cross-examination, whether she had had sexual intercourse with other persons between certain dates near the time when the child was begotten. The child was born on the 22d day of February, 1881, and the testimony strongly tended to show that it was a well developed and fully matured child at the time of its birth. The full period of gestation is nine months, and if the child went the full period it must have been begotten as early as the 22d of May, 1880. The relatrix went to live at the defendant's house as a domestic on the 9th of May, 1880, and she testified that he had sexual intercourse with her three or four times, four or five days apart; that the first time was about two weeks after she went there, and that she was not able to fix the time when the child was begotten, though she said that she had stated before the justice that it was begotten on the 1st of June or a week before; that the last time she menstruated was the last week in May, and that the first act of sexual intercourse did not occur before that time. She was unable to fix more definitely these several acts of sexual intercourse. Thereupon the defendant propounded to her, upon cross-examination, the following question: "Did you have sexual intercourse with anybody other than the defendant between the 9th day of May and the 9th day of June, 1880?" This question the court, upon objection, refused to allow her to answer, and also refused to allow her to answer a similar question covering the period from the 13th of May to the 17th of June 1880, but limited the enquiry to the period between the 15th of May and the 15th of June, 1880. Of these rulings the appellant complains, and, we think, justly.
It has been settled by repeated decisions of this court that the relatrix may be required to state whether she has had sexual intercourse with any person other than the defendant about the time the child was begotten. Walker v. State, 6 Blackf. 1; Hill v. State, 4 Ind. 112; O'Brian v. State, 14 Ind. 469.
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Beaman v. Hedrick
...26 N.E.2d 912. The human gestation period is neither absolute nor is it controlled by legislative or judicial fiat. Benham v. State ex rel. Richardson (1883), 91 Ind. 82. A particular period of gestation, however, is generally governed by the medical testimony in that particular case. Anno.......
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Belford v. State
...proof of acts of intercourse, prior to and subsequent to the time of conception is not admissible. 103 Mass. 46; 118 Mass. 602; 61 Ia. 538; 91 Ind. 82; Mass. 176. Acts of intercourse with other men than the defendant are only admissible in evidence when they occurred within the period when ......
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Dehler v. State ex rel. Bierck
...evidence is competent for the jury to consider in determining whether or not the defendant is the father of the child. Benham v. State, 91 Ind. 82;O'Brian v. State, 14 Ind. 469. It is also competent to inquire of the relatrix whether or not she did have such intercourse. Hill v. State, 4 In......
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Dehler v. State ex rel. Bierck
... ... Such evidence is competent for the jury to consider ... in determining whether or not the defendant is the father of ... the child. Benham v. State, ex ... rel., 91 Ind. 82; O'Brian v ... State, ex rel., 14 Ind. 469. It is also ... competent to inquire of the relatrix whether or not ... ...