Goodwine v. State, ex rel. Dove

• Decision Date: 07 June 1892
• Docket Number: 555
• Citation: 31 N.E. 554,5 Ind.App. 63
• Parties: GOODWINE v. THE STATE, EX REL. DOVE
• Court: Indiana Appellate Court

31 N.E. 554

5 Ind.App. 63

GOODWINE v. THE STATE, EX REL. DOVE

No. 555

Court of Appeals of Indiana

June 7, 1892

From the Fountain Circuit Court.

Judgment affirmed.

C. V McAdams, for appellant.

W. P Rhodes and W. L. Rabourn, for appellee.

OPINION

REINHARD, C. J.

This is a proceeding in bastardy. The cause was tried by a jury and the appellant was adjudged the father of the relatrix' 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 can not 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. 91; Ricketts v. Harvey, 106 Ind. 564, 6 N.E. 325.

The appellant assails the fourth, sixth and seventh instructions given by the court. They are as follows:

"4. Evidence has been permitted to go to you of the relatrix' 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 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 it 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 criticize these instructions as presenting an erroneous view of the law. They argue 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. They also insist 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' 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' testimony. O'Brien v. State, ex rel., 14 Ind. 469. 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 acts of association between the relatrix and other men prove nothing unless they tend to establish criminal connection other than that to which the relatrix attributes the conception and pregnancy, and that the child was begotten at a time and by one other than as claimed by her. If the appellant desired to have the jury instructed further as to the purpose of admitting evidence of coition with another, at or about the time of the alleged conception, his counsel should have prepared and submitted an instruction upon that subject with a request that it be given to the jury.

Nor can we agree with appellant's counse...