Graves v. Gambrell

• Decision Date: 02 January 1939
• Docket Number: 33472
• Citation: 184 Miss. 61,185 So. 238
• Court: Mississippi Supreme Court
• Parties: GRAVES v. GAMBRELL

185 So. 238

184 Miss. 61

GRAVES v. GAMBRELL

No. 33472

Supreme Court of Mississippi, Division B

January 2, 1939

APPEAL from the circuit court of Lee county HON. THOS. H. JOHNSTON Judge.

Bastardy proceeding by Lola Graves against M. B. Gambrell. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. W P. Boggan, of Tupelo, for appellant.

The court erred in granting the third instruction given the defendant and read to the jury in this case, because it instructed the jury that unless the child was born as a result of the act of intercourse on the night of June 27 1936, they must find for the defendant. This instruction was not sustained by the evidence and should not have been given and was peremptory as to all the proof in the case concerning the acts of intercourse shown to have taken place between the parties on other dates. There is proof in the record attempting to show that the acts of intercourse began the latter part of May, 1936, and this instruction was equivalent to telling the jury to ignore that evidence and to not consider it, but if they did not think that the birth of the child was the result of the intercourse on June 27, 1936, they must find a verdict for the defendant. This instruction, when considered alone by the jury was only peremptory and affected other acts of intercourse, but when taken with Instruction No. 7, the two together are equivalent to telling the jury peremptory to find for the defendant.

The court erred in granting Instruction No. 6, because there was no evidence whatever in the record to justify the giving of such an instruction as it is not shown by the record that any other person had an opportunity to have or had sexual intercourse with appellant, except appellee, at or about the time of conception.

Lackey v. St. Louis & San Francisco Ry. Co., 59 So. 97, 102 Miss. 339.

General instructions applicable to only one count telling the jury if they believe hypothesis stated therein to find for defendant, ignoring other counts is reversible error.

Thames v. Batson & Hatten Lbr. Co., 108 So. 181, 143 Miss. 5; J. R. Buckwalter Lbr. Co. v. Wright, 132 So. 443, 159 Miss. 470; Garner v. Peters, 131 So. 881, 159 Miss. 420.

Instructions not sustained by evidence should not be given, and requests therefor are properly refused.

Burnley v. Mullins, 38 So. 635, 86 Miss. 441; American Cent. Ins. Co. v. Antram, 41 So. 257, 88 Miss. 518; Mobile, J. & K. C. R. Co. v. Jackson, 46 So. 142, 92 Miss. 517; Kneale v. Lopez & Dukate, 46 So. 715, 93 Miss. 201; Alabama & V. Ry. v. Baldwin, 52 So. 358, 96 Miss. 52; Western Union Tel. Co. v. Robertson, 69 So. 680, 109 Miss. 775; Davis v. Heck, 79 So. 59, 118 Miss. 74; Town of Hickory v. Semmes, 86 So. 273, 123 Miss. 436; Natchez & S. Ry. Co. v. Guice, 101 So. 439, 136 Miss. 307.

General affirmative or peremptory charge should not be given where the evidence is conflicting or substantially conflicting on material issues.

Sellers v. Lofton, 116 So. 104, 149 Miss. 849; Columbus & G. Ry. Co. v. Phillips, 133 So. 123, 160 Miss. 390; Wynnegar v. Southwestern Co., 83 So. 3, 120 Miss. 675; Campbell v. G. & M. N. R. Co., 89 So. 1, 126 Miss. 438; Rodgers v. Whitehead, 89 So. 779, 127 Miss. 21; Buie v. Cloy, 90 So. 446, 127 Miss. 719; Hutchinson v. Gaston, 91 So. 193, 128 Miss. 487; Grenard Mfg. Co. v. Little, 105 So. 762, 141 Miss. 762.

OPINION

Ethridge, P. J.

The appellant, Miss Graves, filed a bastardy proceeding in the Circuit Court of Lee county against M. B. Gambrell, alleging him to be the father of her child, for whom she seeks support. The testimony on behalf of plaintiff was to the effect that the defendant, M. B. Gambrell, at that time a single man, began going with her about the middle of May, 1936; and that on the last Saturday night of May they had sexual relations, which continued at intervals from that date until about the first of October. The defendant, M. B. Gambrell, married another woman in November, 1936. The child was born on the last day of February, 1937. In the early part of that month a proceeding was instituted in the justice of the peace court. It appears that the plaintiff and her brother-in-law both testified in court at that time that the defendant began going with the plaintiff about the middle of June; but later both testified that this was a mistake--that they began going together in May, and that the act occurred on the last Saturday night of that month. Several other witnesses corroborated plaintiff's testimony in regard to the time the defendant began to go with her, placing it near the middle of May, the time being fixed in their memory by the fact that it was cotton-chopping time. The brother-in-law and sister of plaintiff testified to the fact that on the last Saturday night in May the plaintiff and defendant went out of the house and remained about an hour; the plaintiff testified that they went to the car shed or garage on her father's place near the house, and that the act took place there.

There was no testimony showing illicit relations between the plaintiff and any other man, and her reputation for chastity theretofore was not attacked. She stated That occasionally other young men called at her home, but that no such relation existed with any of them.

The defendant, Gambrell, took the stand, testifying in his own behalf; admitted having had illicit relations with the plaintiff, but testified that the first act occurred on June 27th, not in May; that he did not go with the plaintiff in May of that year. He testified that the relations continued until about the first of October--that he did not remember the number of occasions.

Two physicians were introduced, one who attended the plaintiff in childbirth; the attending physician testified that the child was apparently normal; that the period of gestation usually was 280 days, the time being counted from the date of the last menstruation; but that conception could take place at any time during that period, counting from the last menstruation. One of the physicians testified that the period of gestation began with conception, and that the period of gestation would be from 275 to 280 days for a normal child. One physician testified that there could be a variation of two weeks in a normal case, according to the age of the woman and the condition of her health.

A young couple living on the place of plaintiff's father, near his residence, testified that the defendant visited the plaintiff from the middle of May until some time in August. From the testimony of both plaintiff and defendant it appears that if their relations continued after August, the defendant had quit going to the house, and they were meeting elsewhere. The plaintiff testified that she realized that she was pregnant about the third week in July, but that she only told the defendant of it about the first of October.

One of the young men alleged to have visited the Graves home occasionally in company with a friend, calling on the two sisters, both of whom were then single, testified that there was no intimate friendship between him or his friend and the girls--they were merely casual visitors. Another testified that he just went there with the crowd, or "bunch " as he expressed it, neither he nor his friend having any...