Goldman v. State ex rel. Thomas
| Decision Date | 25 November 1935 |
| Docket Number | 15,105 |
| Citation | 198 N.E. 450,101 Ind.App. 147 |
| Parties | GOLDMAN v. STATE EX REL. THOMAS |
| Court | Indiana Appellate Court |
From Henry Circuit Court; John H. Morris, Judge.
Bastardy proceeding by the State on the relation of Harriet Thomas against Sam Goldman. From a judgment for plaintiff, defendant appealed.
Affirmed.
Robert S. Hunter, for appellant.
E. H Yergin and Horace G. Yergin, for appellee.
This is an appeal from a judgment rendered against appellant in a bastardy proceeding.
The overruling of appellant's motion for new trial is the sole error relied upon for reversal.
The causes for new trial assigned in the motion therefor, and discussed in appellant's brief, are: (1) The verdict is not sustained by sufficient evidence; (2) errors in the giving of certain instructions.
One of the instructions given by the court, and complained of by appellant, reads as follows:
"If you find from the evidence that the relatrix had intercourse with some person or persons, other than the defendant, at about the time the child was begotten, and you further find from a preponderance of all the evidence that the defendant is the father of such child, your verdict should be that the defendant is the father of the child, notwithstanding your finding, if you do so find, that the relatrix had intercourse with some person or persons other than the defendant."
Appellant says, in his brief, with reference to said instruction:
"If it is shown that about the time the relatrix became pregnant that she had intercourse with others, and can give no particular reason why any one of the acts was the one in which the child was begotten, the evidence will be insufficient to justify a finding against the defendant." (Our italics.) Citing Whitman v State ex rel. Hemminger (1870), 34 Ind. 360; and Kintner v. State ex rel Ripperdan (1873), 45 Ind. 175.
We agree with said statement as an abstract principle of law, but that principle is not applicable as a test of said instruction, because said instruction does not assume that the relatrix could "give no particular reason why any one of the acts was the one in which the child was begotten."
By that instruction the court told the jury, in effect, that if they found that other persons, besides appellant, had intercourse with the relatrix at about the time the child was begotten, such finding would not, of itself, prohibit a finding by them that defendant was the father of the child. Such a statement is supported by former decisions of this court. (See Goodwine v. State ex rel. Dove [1892], 5 Ind.App. 63, p. 68, 31 N.E. 554.) Said instruction is not inconsistent with the decision of the court in either of said authorities cited by appellant.
Appellant has not cited any authorities in support of any other of his contentions.
We deem...
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