Lamott v. State ex rel. Lucas

• Decision Date: 23 April 1891
• Docket Number: 14,919
• Citation: 27 N.E. 346,128 Ind. 123
• Parties: LaMott v. The State, ex rel. Lucas
• Court: Indiana Supreme Court

27 N.E. 346

128 Ind. 123

LaMott v. The State, ex rel. Lucas

No. 14,919

Supreme Court of Indiana

April 23, 1891

From the Wayne Circuit Court.

The judgment is affirmed, with costs.

H. U Johnson, for appellants.

W. F Medsker and C. E. Shively, for appellee.

OPINION

McBride, J.

This was a bastardy proceeding. After the evidence had been heard and while the argument to the jury was being made, the court adjourned for the day and the judge left the court room. Thereupon six of the jury engaged in trying the case approached the relatrix, and, with her consent, inspected the features of the bastard child. There was a verdict, finding that the defendant was the father of the child, and he insists that the action of the six jurors was such misconduct as entitled him to a new trial.

At the proper time the defendant presented to the judge, and asked to have given, the following special instruction:

"In passing upon the question as to whether or not the defendant is the father of the bastard child of Hattie Lucas, you have no right to take into consideration the countenance of said child. It was not proper for said child to be offered in evidence to you in the cause, nor for you to inspect it, or draw any conclusions whatever from its appearance."

The court refused to give this instruction, but, instead, gave the following:

"6. In passing upon the question as to whether the defendant is the father of the bastard child of Hattie Lucas, you have no right to take into consideration the countenance of said child, nor for you to inspect it, or draw any conclusion whatever from its appearance. But, in considering and determining this case, you must look only to and consider the oral testimony, and not the resemblance or non-resemblance of the child to the defendant."

Assuming, without deciding, that the jurors were guilty of misconduct in inspecting the features of the child, the instruction given by the court was sufficient to cure any error that may have been committed so far as any question is presented to us by the record. We must assume, in the absence of any showing to the contrary, that the jury gave due heed to the instruction given, and were not in any manner influenced or governed by the inspection of the child's features. The instruction given was sufficient, and was quite as favorable as the defendant could ask to have given.

Counsel urges that as the evidence is conflicting, and, in...