Houser v. State ex rel. Lantz

• Decision Date: 14 February 1884
• Docket Number: 10,973
• Citation: 93 Ind. 228
• Parties: Houser v. The State, ex rel. Lantz
• Court: Indiana Supreme Court

93 Ind. 228

Houser v. The State, ex rel. Lantz

No. 10,973

Supreme Court of Indiana

February 14, 1884

From the Huntington Circuit Court.

Judgment affirmed, at the appellant's costs.

B. F Ibach, for appellant.

J. C Branyan, C. W. Watkins and M. L. Spencer, for appellee.

OPINION

Hammond J.

This was a prosecution for bastardy. The verdict of the jury found the appellant to be the father of the child, and the judgment of the court charged him with its maintenance and education by the payment of a specified sum in instalments. A number of errors are assigned, but the only one discussed by appellant's counsel is that relating to the overruling of his motion for a new trial. The various grounds upon which the new trial was asked will be considered in the order in which they are presented in the appellant's brief.

It is insisted that the verdict is not sustained by sufficient evidence.

The relatrix testified that the child was begotten in November, 1881, and born August 18th, 1882, and that the appellant was its father. The appellant testified that he was not with the relatrix after September 17th, 1881, until some time in the following January, and that he did not have sexual intercourse with her in November. There was evidence, to some extent, corroborating his statements. The case is one simply of conflict of evidence. The testimony of the relatrix, if believed by the jury, as it evidently was, fastened the paternity of the infant upon the appellant. Even though her evidence seemed to us to be borne down by the weight of opposing proof, we could not, as has been repeatedly decided, interfere with the verdict of the jury upon that account. Besides her own evidence in vindication of the verdict, it may be stated that the appellant tacitly admitted his carnal intercourse with the relatrix in September, 1881, and in January, 1882. There was evidence from which the jury may have believed that there was an opportunity for such intercourse in November, 1881. And if they believed this, the circumstances of the case probably justified the inference that his virtue in November was not more potent against temptation than at the other times when it yielded.

While the relatrix was testifying, the prosecuting attorney handed two letters to her, asking if she knew the handwriting. Appellant's counsel objected to the question, and demanded an inspection of the letters. The court overruled his objection, and at that time refused him an inspection of the letters. The witness testified that the letters were written by the appellant. The prosecuting attorney, then, in answer to a question by the court, stated that he intended to offer the letters in evidence. The letters were then, by order of the court, delivered to the appellant for inspection. The State did not offer them in evidence. The appellant claims that he was greatly prejudiced by this proceeding, by the unfavorable impression produced upon the minds of the jury. Before introducing the letters in evidence, it was necessary to prove that they were written by the appellant. He had no right to an inspection of them until they were offered in evidence. The fact that they were not offered in evidence, after proof that they were written by him, is no ground for complaint, as their introduction in evidence was not demanded by himself. Perhaps, after all, his sensitiveness about the letters did him quite as much harm in the estimation of the jury as the proof that they were in his handwriting. In the conduct of a trial there are many trifling occurrences bearing favorably or unfavorably upon the one or the other of the parties, which are difficult for the trial court, and beyond the power of this court, to correct. Fortunately, however, for litigants, the ingenuity of counsel upon the one side is usually counterbalanced by the tact of counsel upon the other, so that the substantial rights of parties are generally preserved. It is only where there has been manifest injustice, occasioned by a proceeding, in which the power of the trial court for correction has not been properly...