Goodwine v. State ex rel. Dove

• Decision Date: 07 June 1892
• Citation: 31 N.E. 554,5 Ind.App. 63
• Parties: Goodwine v. State ex rel. Dove.
• Court: Indiana Appellate Court

5 Ind.App. 63

31 N.E. 554

Goodwine

v. State ex rel.Dove.

Appellate Court of Indiana.

June 7, 1892.

Appeal from circuit court, Fountain county; J. M. Rabb, Judge.

Prosecution for bastardy on relation of Maggie Dove against John C. Goodwine. From a verdict and judgment against defendant, he appeals. Affirmed.

C. P. McAdams, for appellant. W. L. Rabourn, for appellee.

REINHARD, C. J.

This was a proceeding in bastardy. The cause was tried by a jury, and the appellant was adjudged the father of the relatrix's child. The court ordered him to pay $800 for its maintenance and support. He appealed to the supreme court, and that tribunal ordered the cause transferred here, adjudging that the same is within our jurisdiction. We will notice the alleged errors in the order followed in the brief of appellant's counsel.

The appellant requested the court to give the jury the following instruction: “(2) In determining the fact as to who is the father of the child in question, it is not proper for you to consider, as bearing upon that question, the fact that a child has been born to the relatrix, and that it is a bastard. That is a fact that there is no dispute about; and the sole question is as to whether or not the defendant is the father of the child, and the fact that such a child has been born does not tend to prove that the defendant is the father of the child.” The instruction was refused, and counsel insist that this was error, for which the judgment should be reversed. No error was committed in the refusal to give this charge. That a bastard child had been born to the relatrix was a fact necessary for the state to prove. The consideration of this fact cannot be excluded from the jury, though it may have been admitted as true without the introduction of evidence. It was the first step necessary to establish before the appellant could be adjudged the father of the child. While, of itself, it does not prove the paternity, it is a necessary link in the evidence required to that end. It is therefore not accurate to say that the jury have not the right to consider this fact, even in the determination of the question of the child's paternity. It is not the duty of the court to give an instruction requested, unless the same is correct in the form in which it is asked. The court is not bound to modify such instruction and make it accurate, and then give it. The party requesting the instruction must present it in the form in which it is to be given; and, unless it is accurate as framed, there is no error in refusing to give it. Over v. Schiffling, 102 Ind. 191, 26 N. E. Rep. 91; Ricketts v. Harvey, 106 Ind. 564, 6 N. E. Rep. 325.

The appellant assails the 4th, 6th, and 7th instructions given by the court. They are as follows: “(4) Evidence has been permitted to go to you of the relatrix's association with one Jerry O'Brien. The purpose of evidence of this character is to prove that at about the time the child in question was begotten the relatrix had intercourse with said O'Brien, and that the child was begotten by such intercourse; and it is competent only for this purpose. It is your province alone to determine the weight of the evidence, and it is for you to say whether or not the evidence on this point is sufficient to establish the fact that such intercourse did take place between the relatrix and O'Brien.” “(6) If you should be satisfied from the evidence that the relatrix did have intercourse with O'Brien about the time the child in question was begotten, it does not necessarily follow that your finding shall be for the defendant, but is a circumstance you should consider in determining the question as to whether or not the defendant is the father of the child. (7) The state must show by a preponderance of the evidence that the defendant is the father of the child, and if you should find from the evidence that about the time the child was begotten both the defendant and O'Brien had intercourse with the relatrix, and that you are unable to tell which of them is the father of the child, then you must find for the defendant.”

The counsel for appellant criticises these instructions as presenting an erroneous view of the law. He argues that the rule laid down in the fourth instruction, that the evidence of association with O'Brien was admitted only for the purpose of proving intercourse with him, and that the child was begotten by him instead of the appellant, is contrary to law. He also insists that proof of intercourse with O'Brien is more than a circumstance for the consideration of the jury upon the question of the paternity of the child. We confess our inability to see the force of the objections urged against these instructions. It is true, the question whether or not O'Brien is the father of the relatrix's child is not an issue in this cause. It may also be true that proof of sexual intercourse with another about the time of conception would tend to throw doubt upon the credibility of the relatrix's testimony. O'Brien v. State, 14 Ind. 468. But, after all, the only purpose of proof of intimate relationship and association with O'Brien must be to show criminal connection, for certainly it could not be maintained that proof of mere intimacy between the relatrix and another, without sexual intercourse, tended to impeach her as a witness. Whatever may be the ultimate object of the testimony, the mere fact of association between the relatrix and other men proves nothing unless it...