Magnuson v. State ex rel. Jarrett
| Decision Date | 11 October 1895 |
| Docket Number | 1,803 |
| Citation | 41 N.E. 545,13 Ind.App. 303 |
| Parties | MAGNUSON v. THE STATE EX REL. JARRETT |
| Court | Indiana Appellate Court |
From the Noble Circuit Court.
Judgment reversed with instructions to sustain appellant's motion for a new trial.
L. W Welker, for appellant.
T. M Eells and H. C. Peterson, for appellee.
This was a prosecution for bastardy. Upon a trial appellant was adjudged to be the father of relatrix's child, and a judgment in the sum of two hundred and fifty dollars for its maintenance rendered against him.
The only specification of error discussed, of those assigned, calls in question the correctness of the court's ruling in overruling appellant's motion for a new trial.
The learned counsel for appellant very earnestly insists that the verdict of the jury is not sustained by sufficient evidence, and in support of this contention points out several apparent inconsistencies in the evidence of the relatrix upon questions which are material to a recovery, and without which no recovery could have been had in this case, and on account of such apparent contradictions asks this court to disregard her testimony entirely. In other words we are asked to weigh the evidence and determine not only upon which side there is a preponderance, but also to determine the credibility to be attached to the testimony of the witnesses. This we cannot do. The rule is so firmly settled that this court cannot weigh the evidence, that we cannot conceive what more can be added to make it better understood.
This court, it should be borne in mind, has nothing before it but the record, where all of the evidence comes upon the same footing, and the words of one witness mean just as much as the same words of another witness; when, perhaps, if the witnesses were seen while they testified, their manner noted, their voices heard, and the manner and demeanor while testifying observed, one might be believed and the other wholly disbelieved. It is for this reason, if no other, that this court has announced and adhered to the rule that when the jury hearing the evidence have determined the truth of the controversy and the trial court has given their verdict his approval, the judgment will not be reversed if there is any evidence to support the verdict.
It is next urged that the court erred in refusing to permit counsel for appellant, when making his argument to the jury, to read to them and discuss a part of the examination of the relatrix taken on the original hearing before the justice of the peace, and introduced on the trial in the circuit court.
Ordinarily it is the privilege of counsel to discuss before the jury all of the evidence introduced on the trial, and if the court interfere with such right or privilege it is such a denial of justice as will warrant a reversal of a judgment rendered against the party whose rights have been thus abridged. In this instance, in view of the evidence in the case and the statement of counsel for appellee made on the trial, disclaiming any proof on the subject to which the question and answer related, and which was an immaterial question, the refusal of the court to permit the reading and discussing of the question and answer referred to was harmless.
The last question discussed relates to the misconduct of counsel for appellee in his closing argument to the jury.
It appears that counsel, in his closing argument, in speaking of the appellant, said that he "was a loose-footed fellow and hasn't a foot of land in this county, and hasn't any habitation." To this statement of counsel, the appellant's counsel objected and requested the court to...
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