Brasseau v. Padlo., 302.

• Decision Date: 05 October 1943
• Docket Number: No. 302.,302.
• Citation: 34 A.2d 186
• Court: Vermont Supreme Court
• Parties: BRASSEAU v. PADLO.

34 A.2d 186

BRASSEAU

v.PADLO.

No. 302.

Supreme Court of Vermont.

Oct. 5, 1943.

Exceptions from Chittenden County Court; Orrin B. Hughes, Presiding Judge.

Bastardy proceeding by Lorraine Brasseau against Edward Padlo. Judgment for plaintiff, and defendant brings exceptions.

Reversed and remanded.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Foley & Rothman, of Burlington, for plaintiff.

Lindley S. Squires, of Rutland, for defendant.

SHERBURNE, Justice.

This is a bastardy proceeding and comes here upon exceptions by the defendant. A child was born to the plaintiff on April 6, 1941, which could have been begotten during the period from July 16 to July 24, 1940. The plaintiff testified that she began going with the defendant in June, 1940, and they became engaged about July 14, and thereafter had sexual intercourse on July 16, 19, and 24, 1940, and that she had not had sexual intercourse with any other than the defendant from June 1, 1940, to the present time. She further testified that she had menstruated July 9 to 11, 1940, and that when she did not menstruate in August she discovered that she was in trouble.

The defendant excepted to the exclusion of offered evidence that the plaintiff kept company with other men in July, 1940, after the claimed engagement to the defendant, to meet her testimony relative to the engagement and that she did not keep company with other men after becoming engaged. Our attention is not called to any offer to show sexual intercourse with any of these men.

Evidence of the relationship between the complainant in a bastardy proceeding and other men than the defendant in order to be admissible, must be offered for the purpose of showing or reasonably imputing sexual intercourse at a time when the child could have been begotten. Lohsen v. Lawson, 106 Vt. 481, 484, 174 A. 861, 95 A.L.R. 309; Sterling v. Sterling, 41 Vt. 80; 7 Am.Jur., Bastards, Sec. 119, Annotations, 104 A.L.R. 97. Thus in Maloney v. Piper, 105 Mass. 233, cited in Lohsen v. Lawson, supra, where the complainant on cross-examination denied that she rode or walked with certain young men at or about the time when the child was begotten, evidence offered to show that the complainant did, at the time referred to, walk and ride with the young men, but without an offer to prove any facts tending to show criminal intercourse, was held rightly excluded.

The only question to be determined in such a case is whether the defendant begot the child. On this issue evidence is admissible which shows the character of the intimacy between the parties. 7 Am.Jur., Bastards, Sec. 117. Thus in Thayer v. Davis, 38 Vt. 163, evidence of prior sexual intercourse between the parties was held admissible as tending to illustrate the relation of the parties to each other at the time when the child was begotten. Evidence that the parties were engaged at the time of the intercourse is admissible to show the relationship of the parties. State v. Brunette, 28 N.D. 539, 150 N.W. 271, Ann.Cas.1916E, 340; Brantley v. State, 11 Ala.App. 144, 65 So. 678, certiorari denied Ex parte Brantley, 191 Ala. 660, 66 So. 1008.

The fact of such engagement was not directly involved as an element in the case, but was merely a circumstance whose sole office was to induce a belief as to the fact in issue, viz., did the defendant beget the child. While the offered evidence might have some tendency to...