Hull v. State ex rel. Dickey

• Decision Date: 26 January 1884
• Docket Number: 11,058
• Citation: 93 Ind. 128
• Parties: Hull v. State, ex rel. Dickey
• Court: Indiana Supreme Court

93 Ind. 128

Hull v. State, ex rel. Dickey

No. 11,058

Supreme Court of Indiana

January 26, 1884

From the Jennings Circuit Court.

J. O Cravens, for appellant.

D Overmyer and W. G. Holland, for appellee.

OPINION

Best C.

This was a prosecution for bastardy. The cause was tried by a jury. Verdict and judgment for the State. A motion for a new trial was overruled, and this ruling is assigned as error.

This motion embraced many reasons, but we will only consider those mentioned in appellant's brief.

It is first insisted that the verdict is contrary to the evidence. This position is based upon the assumption that the case made by the State was completely overthrown by the appellant's testimony, and hence the verdict was contrary to the evidence. The question made thus arises. The relatrix's child was born on the 27th day of September, 1882, and she testified that it was begotten about the first of the previous February; that the appellant was the father of the child, and that no other person had sexual intercourse with her about the time the child was begotten. The appellant admitted that he had intercourse with her on the night of January 30th, 1882, and a number of times within ten days thereafter, but denied that he had any connection with her at any other time during the month of January. The testimony further showed that criminal relations had existed between these parties for two or three years previous to this time, but failed to show that any acts of intercourse had occurred between them within two or three months immediately preceding the time when this child was begotten. This testimony, considered alone, was abundantly sufficient to establish the paternity of this child. This the appellant concedes, but he offered testimony to show that the child, at its birth, had gone the full period of gestation, and, assuming such fact to have been established, he insists that it must have been begotten before the 30th of January, and therefore he is not shown to be the father of the child. The testimony introduced to establish the duration of the period of gestation consisted of the statements of an attending physician as to the appearance and general development of the child at its birth, together with the opinions of physicians that the appearance and general development described indicated that such child had gone the full period of gestation. Upon this proposition, however, all the physicians examined did not agree that it could be reliably determined, from these things alone, whether the period of gestation was eight or nine months.

This is the case made by the record upon this point, and it is, as it seems to us, obvious from its mere statement that we can not disturb the verdict of the jury upon this question of fact. The testimony of the relatrix that the child was begotten by the appellant about the first of February, 1882, and his admission that he had connection with her at that time, were certainly sufficient, in the absence of any evidence that any other person ever had connection with her, to fix the charge upon him, and as the child was born about eight months thereafter, we can not say that the testimony as to its appearance and general development at birth shows that it was not then begotten by him. If it were conceded that the testimony upon this question furnished a fair preponderance in his favor, this would not authorize us to disturb the judgment, as this will not be done where the evidence legally tends to support the verdict. This is the general rule, and is applicable to a case where a party insists that his testimony overcomes the case made by his adversary. Applying this rule to the question under discussion, we can not say that the verdict is contrary to the evidence, and, therefore, can not disturb the judgment upon this ground.

It is next insisted that the court erred in permitting the State to prove acts of intimacy between the appellant and the relatrix a year or two previous to the time this child was begotten. Proof of such acts is generally admissible for the purpose of lending probability to the testimony of the relatrix that the appellant had connection with her at the time the child was begotten. This testimony, however, was wholly unnecessary in this case, as the appellant admitted such acts of intercourse, and this admission rendered the testimony harmless if erroneous. The admission of the appellant that he had intercourse with the relatrix about the time the child was begotten was sufficient to establish such fact, and as the introduction of other testimony only tending to establish the same fact could not possibly harm him, no available error was committed in its admission if otherwise wrongful.

On the 30th of January, 1882, the appellant took the relatrix with him to Richmond, in this State, and there remained with her at a hotel for ten days, at the expiration of which time he left her and went to his home. Upon his examination the State was permitted to ask him if he...