Kintz v. State ex rel. Hunter

• Decision Date: 28 October 1919
• Docket Number: No. 10089.,10089.
• Parties: KINTZ v. STATE ex rel. HUNTER.
• Court: Indiana Appellate Court

71 Ind.App. 225

124 N.E. 739

KINTZ

v.STATE ex rel. HUNTER.

No. 10089.

Appellate Court of Indiana, Division No. 1.

Oct. 28, 1919.

Appeal from Circuit Court, Vermillion County; Barton S. Aikman, Judge.

Proceeding by the State, on the relation of Rosa L. Hunter, against Norbert C. Kintz. From a judgment for the relatrix, defendant appeals. Affirmed.

The objections to the index to appellant's transcript were that it did not refer to the appeal bond, its filing and the approval of the sureties, or to the part of the record showing the steps taken to perfect the appeal.

Appellee's instruction No. 1 required the state to prove the charge of the complaint by a preponderance of the evidence.

Appellant's instructions Nos. 2, 3, and 9 required the birth of the child and defendant's paternity to be shown by a preponderance of the evidence.

Orian B. Harris, of Sullivan, for appellant.

Everett A. Davisson, of Clinton, Homer B. Aikman, of Newport, and Beasley, Douthitt, Crawford & Beasley, of Terre Haute, for appellee.

BATMAN, C.J.

This is an action for bastardy, in which it is charged that appellant is the father of the child of the relatrix. No answer was filed. The cause, on reaching the circuit court, was submitted to a jury for trial, resulting in a verdict and judgment against appellant. Prior to the rendition of judgment, appellant filed a motion for a new trial, which was overruled, and has assigned this action of the court as the sole error on which he relies for reversal.

[1][2][3][4] Appellee calls our attention to the fact that appellant has attempted to perfect this appeal under the provisions of section 679, Burns 1914, but has not succeeded by reason of his failure to file the transcript in the office of the clerk of this court within 60 days after filing his appeal bond, as therein provided. It is well settled that, where a party has attempted to perfect a term-time appeal, but has omitted some essential requirement in that regard, he will be deemed to have abandoned his appeal in term; but where the transcript has been filed, with an appropriate assignment of errors, it becomes a vacation appeal. Burns v. Trustees, etc. (1903) 31 Ind. App. 640, 68 N. E. 915;Kellogg v. Ridgely (1907) 40 Ind. App. 423, 81 N. E. 1158. In such an appeal notice must be given as required by section 681, Burns 1914, unless the same is waived. The filing of a brief by appellee on the merits of the appeal, or a joinder in error, is a waiver of notice. Hazleton v. De Priest (1895) 143 Ind. 368, 42 N. E. 751;Lowe v. Turpie (1896) 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233;Cleveland, etc., R. Co. v. Smith (1911) 177 Ind. 524, 97 N. E. 164. In the instant case appellee waived the service of notice in each of the ways stated, and this court thereby acquired jurisdiction of the appeal. Appellee also calls attention to certain omissions in the index to the transcript. While the index is not as complete as it might be, still the omissions suggested by appellees would not warrant our refusal to consider the merits of the appeal on that account.

[5][6] While appellant has assigned a number of reasons for a new trial in his motion therefor, the only ones presented and relied on for reversal relate to the action of the court in giving instructions 4 and 5, on the request of appellee, and in refusing to give instructions 10 and 15, requested by appellant. The court, by said instruction No. 4, informed the jury that, in determining whether or not appellant and the relatrix had sexual intercourse as charged, it might consider their opportunities for so doing, and called attention to certain facts, which, if proven, they might take into consideration in determining whether such opportunity existed. Appellant contends that the question of opportunity for sexual intercourse was not within the issues, and that said instruction, when taken in connection with No. 5, set out below, had the effect of leading the jury to believe that a preponderance of the evidence on the question of whether appellant and the relatrix had opportunity for sexual intercourse would entitle appellee to recover. It has been held proper to instruct the jury on the question of opportunity for sexual intercourse in actions of this kind. Goodwine v. State (1892) 5 Ind. App. 63, 31 N. E. 554. There is no reasonable basis for appellant's remaining contention, in view of other instructions given on the question of what should be proven before appellee would be entitled to recover. There was no error in giving said instruction.

[7][8] Said instruction No. 5 reads as follows:

“A prosecution for bastardy is a civil action, in which a preponderance of the evidence is all that is necessary to establish the case against the defendant.”

Appellant contends that this instruction is erroneous, for failing to state that all the material allegations of the complaint must be established by such preponderance, and that its effect was to lead the jury to believe that a mere preponderance of the evidence, even though it was not sufficient to establish such material allegations, would entitle appellee to recover. These contentions cannot be sustained. It has long been settled in this state that prosecutions for bastardy are civil actions, and that a preponderance of the evidence is all that is necessary to establish the affirmative of any issue connected therewith. Walker v....