Gardner v. State ex rel. Stottler

• Decision Date: 27 March 1884
• Docket Number: 10,703
• Citation: 94 Ind. 489
• Parties: Gardner v. The State, ex rel. Stottler
• Court: Indiana Supreme Court

94 Ind. 489

Gardner v. The State, ex rel. Stottler

No. 10,703

Supreme Court of Indiana

March 27, 1884

From the Hamilton Circuit Court.

D Moss, T. J. Kane, R. R. Stephenson, T. P. Davis, W. H. Craig and L. O. Clifford, for appellant.

W. Neal and J. F. Neal, for appellee.

OPINION

Best C.

This was a prosecution for bastardy. The cause was tried and a judgment rendered against the appellant. A motion for a new trial was overruled, and this ruling is assigned as error.

The principal ground for the motion was newly discovered evidence. The relatrix testified to several acts of sexual intercourse with the appellant, one in January, another in February and others in April, preceding the birth of the child, which occurred on the 5th day of October, 1882. The relatrix stated that the one in January occurred in the evening upon the roadside near school house No. 10, while she was on her way there to attend a spelling school, and the one in February occurred while she was passing through a strip of woods upon appellant's farm. The appellant produced the affidavit of Victoria Carson, who states that she was with the relatrix while passing through the woods upon appellant's farm at the time mentioned, and that the relatrix did not see the appellant upon that occasion. He also produced the affidavits of John Greer and Edward Kepner who stated that they accompanied the relatrix from near her home to the spelling school at the time named, and that she did not see the appellant upon that occasion. The appellant also filed his own affidavit, in which he states that "he did not know until he heard the testimony of the relatrix on the trial of said cause, that she claimed to have had sexual intercourse with him at either of the times and places fixed by her in January and February, 1882, and had no information or knowledge to that effect; that her testimony on said trial was the first intimation he ever had that she claimed to have had sexual intercourse with him near said school house in January, or in the woods in February; that he was surprised on said trial in this court by her said testimony, as he had been informed and believed, prior to said trial, that she claimed to have had the intercourse with him at his house, and at no other place, and, therefore, that he was not prepared to refute her statements with witnesses, aside from his own testimony on the trial; * * * that he used every effort, prior to said trial, to discover all important and material testimony in his behalf; that he went to see and inquire of each and every person whom he knew or believed had any knowledge of the matters involved or knew any facts that he was advised or supposed were material to his defence." The affidavit of appellant states other facts which will hereafter be noticed, but makes no other statement tending to show diligence in the discovery of this testimony, and in this respect we are of opinion that the showing was insufficient. The statement of appellant, that he was surprised at the testimony of the relatrix that acts of intercourse had occurred at places other than at his home, adds nothing to the showing. This testimony was competent and legitimate under the issues, and in such case a party has no right to assume that no such testimony will be introduced. Pauley v. Short, 41 Ind. 180; Hill v. Sutton, 47 Ind. 592; Chamberlain v. Reid, 49 Ind. 332.

It would be otherwise if the relatrix had led him to believe that no such testimony would be given. Haynes v. State, ex rel., 45 Ind. 424.

The statement is that "he was informed and believed" that no such testimony would be given, but it is not stated that the relatrix informed him that such would be the case or made such statement to any other person. In the absence of such information from the relatrix, the...