Burris v. Myrta Court
| Decision Date | 09 March 1892 |
| Parties | WILLIAM BURRIS v. MYRTA COURT |
| Court | Nebraska Supreme Court |
ERROR to the district court for Loup county. Tried below before HARRISON, J.
REVERSED AND REMANDED.
E. J Clements, and J. N. Paul, for plaintiff in error, cited, as to the rejection of testimony, cases referred to in opinion.
Robbins & Babcock, and A. S. Moon, contra:
Failure to request different instructions waives objections to those given. (Post v. Garrow, 18 Neb. 688; Klosterman v. Olcott, 25 Id., 387; Woodruff v. White, Id., 753; N. A. & C. R. Co. v. Wright, 17 N.E. [Ind.] 584; Hyde v. St. Louis Book & News Co., 32 Mo. App 298; Driscoll v. People, 47 Mich. 421; Schryver v. Hawkes, 22 Ohio St. 316; Taft v. Wildman, 15 O., 129; Jones v. State of Ohio, 20 O., 46.) In general, see: Hutchison v. State, 19 Neb. 265; Ingram v. State, 24 Id., 37; Altschuler v. Algaza, 16 Id, 631; Sang v. Beers, 20 Id., 373; Masters v. Marsh, 19 Id., 460.
This is a prosecution for bastardy, in which the plaintiff in error is charged with being the father of an illegitimate child, born to Myrta Court, the defendant in error, on the 6th day of June, 1890. To the charge the accused entered a plea of not guilty. There was a verdict of guilty, and from a judgment for maintenance of the child the defendant below brings this writ of error.
It is urged that the verdict is not sustained by the evidence. In considering this assignment of error we shall not attempt a detailed statement of the testimony of the various witnesses. A brief reference to the proofs will be sufficient to show that the verdict should not be disturbed on the grounds urged. It is undisputed that the child was born on June 6, 1890, and at the time it was begotten the complainant was nineteen years of age, and unmarried. The plaintiff in error was a well to do farmer, residing in Valley county, sixty-six years old. In 1889 he employed the defendant in error as a domestic servant; she commenced work in April of that year and continued until some time in the month of November, 1889, with the exception of one week in the latter part of August, when she was at the home of her parents in an adjoining county. She testified that the plaintiff in error is the father of her child; that she never had sexual intercourse with any other person, and with him but once, which she claims was the last of August or the first part of September, 1889, while Mrs. Burris was away from home, having gone to town.
In the complainant's testimony given on the trial in the district court, as well as at the examination before the magistrate, she states that the child was begotten on the Saturday following her return to his house, after she had been home the week referred to. Although she testified on the preliminary hearing that she thought the date of her return was the last Saturday in August, she introduced on the trial in the court below testimony of disinterested witnesses to the effect that she went home on August 17th and returned to plaintiff in error's house on Saturday, August 24th. The complainant's testimony as to the act of intercourse is direct and positive. The plaintiff in error testified, denying that he ever had connection with her at any time, and he also established by numerous witnesses that he was not at home from the 4th day of September, 1889, to the 11th day of the same month, but that during a portion of that time he was at Afton, Iowa, and the remainder he was at Newman's Grove, in Madison county, this state, showing conclusively that he did not have sexual intercourse with the complainant the first Saturday in September, that being the date stated in her testimony before the examining magistrate. But a complete alibi is not, however, established, in view of the testimony already mentioned as to the date she went home in August on a visit and the time she returned. If the act was committed the Saturday following her return, as she contends, then it must have occurred on August 31st, before the defendant took his trip to Iowa, and to Madison county. On that date he was at home.
The plaintiff in error called as witnesses in his behalf William Black and Elbridge Mitchell, each testifying that he had intercourse with the complainant at various times between the 12th day of August and September 26, 1889. Their testimony is denied by the complainant. The case is one of conflicting testimony, upon which the jury could have found either way, and the verdict be supported by the evidence. The jury evidently believed the complainant and her witnesses which evidence, if true, was sufficient to justify the jury in returning a verdict of guilty. It was the province of the jury to weigh the testimony of the witnesses, as well as all the facts and circumstances...
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