Gemmill v. State ex rel. Brown
| Decision Date | 23 April 1896 |
| Docket Number | 1,942 |
| Parties | GEMMILL v. THE STATE, EX REL. BROWN |
| Court | Indiana Appellate Court |
Rehearing denied October 2, 1896.
From the Delaware Circuit Court.
Affirmed.
J. W Headington, J. F. LaFollette, O. H. Adair, J. J. M LaFollette, J. W. Ryan and Wm. A. Thompson, for appellant.
J. N. Templer, E. R. Templer, W. H. Williamson and Joseph Sells, for appellees.
Appellant was adjudged the father of the bastard child of relatrix, but asserts he is entitled to a new trial.
There was no error in admitting proof of an existing engagement to marry between appellant and relatrix. It was said by Olds, J., in Ramey v. State, ex rel., 127 Ind. 243, 26 N.E. 818: "It was proper to show the relations existing between these parties, their acquaintance and their intimacy of whatever character it was." Such evidence is admitted, not because it has any direct tendency to prove illicit intercourse between the parties, but simply because it is an incidental circumstance to inform the jury of the footing upon which they stand toward each other. Marks v. State, ex rel., 101 Ind. 353; Francis v. Rosa, 151 Mass. 532, 24 N.E. 1024.
Relatrix testified that the child was begotten about March 1. Appellant denied having intercourse with her at that time, but admitted that he did so, for the first time, upon April 6 following. Complaint is made because the court required him to answer as to when and how frequently he had such intercourse after that time. While the court held this question proper, and it was asked repeatedly, we have been unable to find any answer which indicated to the jury either when or how frequently this occurred. Even had it been directly answered we are unable to see how appellant could have been harmed thereby. The circumstances surrounding appellant and relatrix, their outward relations and their opportunities for intimacy, were about the same for months previous to April 6, and for some time afterward as at that time. His admission that he was disposed to engage in this commerce during a period so near to the time of conception would have some weight to corroborate the girl's testimony that he was of the same mind shortly before. Thayer v. Thayer, 101 Mass. 111, quoted with approval in State v. Markins, 95 Ind. 464; Beers v. Jackman, 103 Mass. 192.
Exception is taken to the court's permitting parts of certain letters to be read to appellant while on the stand and in allowing him to be asked "Did you write that language in that letter?" Counsel insist that it was not proper to thus put the letters to the jury by piecemeal, nor to allow a cross-examination based upon the contents of these letters, and that they did not respond to anything brought out upon the original examination. At section 463, 1 Greenleaf Ev., it is said that on cross-examination counsel will not be permitted to represent, in the statement of a question, the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents or contents to the like effect, without having first shown to the witness the letter, and having asked him whether he wrote that letter, and his admitting that he wrote it. Again at section 465 it is further stated: "A witness cannot be asked upon cross-examination, whether he has written such a thing, stating its particular nature or purport, the proper course being to put the writing into his hands, and to ask him whether it is his writing." This rule, which has been abrogated by statute in England, was founded upon the decision of the Law Judges in the Queen's Case, 2 Brod. and Bing. *286, and has been approved in this country so far as it defines the nature of the question to be asked. Stamper v. Griffin, 12 Ga. 450; Romertze v. East River Nat'l Bank, 49 N.Y. 577; Rapalje on Witnesses, sections 205, 206. It has also been accepted in Indiana. McCullough v. McCullough, 12 Ind. 487.
While this is laid down as the ordinary course of procedure, yet the original opinion given by the judge to the house of lords, Greenleaf, Rapalje, and the New York Court of Appeals recognize that, while the cross-examiner should ordinarily first make known to the jury the contents of the letter when he offers it on his side of the case, the trial court will, upon proper statement of the necessity therefor, in the furtherance of justice, permit the letter, if otherwise competent, to be read immediately and pending the cross-examination that questions may be asked founded upon it. Here the letters were submitted to appellant before he was interrogated concerning them and he admitted writing them. Counsel have not pointed out nor have we observed any respect wherein the extracts as to which he was particularly questioned, were, in fact, garbled, incomplete, or wrested from their proper connection so as to convey any false impression as to their meaning. The entire letters were subsequently offered and read in evidence. Under these circumstances appellant was not subjected to any unfair treatment, nor was there any possibility of material wrong resulting to him from the mode of examination pursued.
Under the above authorities and Foss-Schneider Brewing Co. v. McLaughlin, 5 Ind.App. 415, 31 N.E. 838, there was no error in permitting appellant to be questioned as to certain matters referred to in the letters.
From the statements upon the stand and the letters considered in connection therewith, the jury might well have concluded that appellant's present version of the facts was not in harmony with the real truth.
It is true, as stated by some of the authorities cited by appellant, the cross-examination must be limited to the subject-matter of the original examination. Hunsinger v. Hoffer, 110 Ind. 390, 391, 11 N.E. 463; Johnson v. Wiley, 74 Ind. 233; Toledo, etc., R. W. Co. v. Harris, 49 Ind. 119.
This does not mean, however, that on cross-examination no questions may be asked save as to matters particularly brought out by the original examination. On the contrary when a general subject is opened up, the cross-examination may extend to any and all phases of that subject. Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544, 14 N.E. 572. Vogel v. Harris, 112 Ind. 494, 14 N.E. 385.
Appellant had denied the paternity of the child and the particular act of intercourse by which it came into being. His subsequent conduct and statements as exemplified in portions at least of these letters were to some extent inconsistent with such denial. So far as there was in them anything which could even remotely affect the case t...
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