Marks v. State ex rel. Vanderkolk

• Decision Date: 19 February 1885
• Docket Number: 11,807
• Citation: 101 Ind. 353
• Parties: Marks v. The State, ex rel. Vanderkolk
• Court: Indiana Supreme Court

101 Ind. 353

Marks v. The State, ex rel. Vanderkolk

No. 11,807

Supreme Court of Indiana

February 19, 1885

Petition for a Rehearing Overruled April 23, 1885.

From the Tippecanoe Circuit Court.

Judgment affirmed.

R. C Gregory, W. B. Gregory, G. O. Behm, A. O. Behm and R. P DeHart, for appellant.

W. C. Wilson, J. H. Adams, H. W. Chase, F. S. Chase and F. W. Chase, for appellee.

OPINION

Elliott, J.

The appellant prosecutes this appeal from a judgment rendered against him in a proceeding under the statute regulating proceedings in bastardy cases.

He asked and was denied a continuance. One of the witnesses named in the affidavit was a resident of the State of Illinois, and it was the duty of the appellant to have taken her deposition. It was carelessness on his part to rely on her promise to be in attendance at the trial. Where a party desires the testimony of a witness not within the jurisdiction of the court, he must take the deposition of the witness, for he can not have compulsory process to compel attendance, and he has no right to have a continuance upon the ground that the witness has promised to attend, and will attend at a future term.

Another one of the witnesses named was present and testified on the trial. As the appellant had the full benefit of the testimony of this witness no harm was done him by the refusal of the court to grant a continuance.

The third witness named in appellant's affidavit was not subpoenaed as a witness, and no diligence appears to have been used to secure her attendance. Nor does it sufficiently appear that her testimony was material; nor is there any sufficient excuse shown for her absence. It is not shown with certainty that she was too ill to attend court, for all that is stated upon this subject is composed of the mere conclusions of the affiant.

There was no error in permitting the relatrix to prove that the appellant was frequently in her company, and that they were out in a buggy together. It was not material whether this testimony did or did not contradict the statements of the appellant, for it was admissible for the purpose of showing the familiarity that existed between him and the relatrix. It is always proper in such cases as this to show the previous acquaintance, conduct and relation of the parties. It is, as the decisions declare, more probable that sexual intercourse will take place between persons whose relations have been of...