James v. Commonwealth

• Decision Date: 11 February 1921
• Parties: JAMES v. COMMONWEALTH, FOR USE OF PENNINGTON.
• Court: Kentucky Court of Appeals

227 S.W. 562

190 Ky. 458

JAMES v. COMMONWEALTH, FOR USE OF PENNINGTON.

Court of Appeals of Kentucky.

February 11, 1921

Appeal from Circuit Court, Carter County.

Bastardy proceedings by the Commonwealth, for the use of Sophia Pennington, against Bert James. From judgment of guilty, and an assessment against him for support of the child, defendant appeals. Affirmed.

Waugh &amp Vinson, of Ashland, for appellant.

Thomas S. Yates, of Grayson, for appellee.

THOMAS J.

On June 8, 1918, the appellant and defendant below, Bert James, was arrested upon a warrant issued by the county court of Carter county in a filiation proceeding (usually called bastardy proceeding), and which is provided by sections 167-180 inclusive, Kentucky Statutes. The proceedings were instituted by Sophia Pennington, an unmarried woman, who charged defendant and appellant with being the father of her illegitimate child, which was born on February 14, 1918. A verdict in the county court found defendant guilty, and required him to pay for the support of the child the sum of $50 per year for 11 years, aggregating the sum of $500. Defendant prosecuted an appeal from the judgment rendered on that verdict to the circuit court of the county, and a trial had therein on May 28, 1919, resulted in another verdict of guilty and an assessment against him of a total sum of $750 payable in installments of $50 per year for 15 years, and from the judgment pronounced on that verdict this appeal is prosecuted.

A number of alleged errors are incorporated in the motion and grounds for a new trial, but all of them except three are abandoned, and only those three are urged before us. They are: (1) Error of the court in refusing to grant defendant a continuance upon his application therefor supported by his affidavit; (2) incompetent evidence which the court permitted the commonwealth to introduce over defendant's objection; and (3) that the verdict is not sustained by sufficient evidence.

The appeal to the circuit court from the judgment in the county court was taken March 26, 1919, but the case had been pending in the county court at that time for more than eight months, since, as we have seen, the defendant was arrested on June 8, 1918. On the 23d day of May, 1918, being the day the case was set for trial, defendant filed his affidavit, showing the absence of certain named witnesses and what their testimony would be, and entered motion for a general continuance of the case. The court overruled the motion, and set the trial forward six days, at which time some of the witnesses included in the affidavit were present, but others were still absent. The motion for a continuance was renewed at that time, but the court overruled it, and permitted the defendant to read his affidavit incorporating the material testimony of the absent witnesses. Two of those witnesses, according to the affidavit, would testify if present, that they had been criminally intimate with Sophia Pennington at a time when they could have been the father of her infant child. One absent witness, Will Stephens (and who it is strenuously argued is the real putative father), is made to say in the affidavit for a continuance that the child's mother, after it was begotten, stated to him that he was its father. This, of course, is only in the nature of a contradictory admission made by the mother, and Stephens was shown to have been all the while after the institution of the proceedings enlisted in the army, and no effort was ever made to take his deposition, although the proceedings had been pending for nearly a year before the trial. There were two other witnesses who testified at the trial to having had intercourse with Sophia Pennington and we are unable to see, under all the circumstances in the case, wherein the court abused its discretion, under the rules of practice prevailing in this commonwealth, in declining to continue the case, and permitting defendant to read his affidavit as the depositions of the absent witnesses. It might, at this point, be stated that he may in reality have profited by the court's ruling, since some of the witnesses for whose absence he made the first motion for continuance were present at the trial and testified exactly opposite to what he claimed in his affidavit they would do. In cases of this kind a reversal will not be ordered, unless it appears from the record that the action of the trial court in refusing the continuance is a manifest abuse of discretion, and clearly prejudiced the substantial rights of the complaining litigant, and prevented him from obtaining at the trial substantial justice. We can detect no difference between the consequences, in the matter complained of, in the court's ruling in this case, and similar rulings in many other cases which this court has uniformly upheld.

Under ground (2), argued and relied on for a reversal, it is insisted: (a) That the court erred in permitting the introduction of testimony showing the amount of property owned and possessed by the mother of the child and by the defendant; and (b) that profert of the child before the jury for the purpose of establishing a resemblance between it and the defendant as its alleged putative father...