McChesney v. State ex rel. Cox

• Decision Date: 16 November 1892
• Docket Number: 737
• Citation: 32 N.E. 339,5 Ind.App. 425
• Parties: MCCHESNEY v. THE STATE, EX REL. COX
• Court: Indiana Appellate Court

32 N.E. 339

5 Ind.App. 425

MCCHESNEY v. THE STATE, EX REL. COX

No. 737

Court of Appeals of Indiana

November 16, 1892

From the Marshall Circuit Court.

Judgment reversed, with costs.

W. B Hess, for appellant.

C. P Drummond, for appellee.

OPINION

FOX J.

The appellant, who was the defendant herein, was arrested upon an affidavit filed against him by the relatrix before a justice of the peace of Marshall county upon a charge of bastardy. The usual preliminary examination was had, and the defendant was bound over to appear in the Marshall Circuit Court, where he was tried before a jury and found to be the father of the child in question. A motion for a new trial was overruled and the case appealed to this court. Two errors are assigned in the record. The first is concerning a certain "verbal instruction" given by the court to the jury, and the second in overruling the motion for a new trial.

The relatrix testified at the trial that the child was begotten on the 5th day of June, 1888; that she had intercourse with the defendant at that time; that she had intercourse with him one time only, and that he was the only person with whom she ever had intercourse; that the defendant was the father of the child. She further testified that in the latter part of June she went to Texas and did not return until the following November. The defendant denied the act of intercourse, and that he was the father of the child. He admitted that he was with her at the time when and at the place where she declared the child was begotten. He also testified that in the following January she came to his house to see him, and that he went with her to her house, and that she there informed him that she was pregnant with a bastard child, and that he was the father of it, which he denied. He also admitted that after he had thus talked with her he left the country and was gone five or six weeks, and gave as a reason for so doing that he "thought she would drop the matter." The defendant introduced a witness by the name of Horner, who testified that in the month of June, 1888, he was working for a man by the name of Stillson, and was there seven or eight days; that the relatrix was there during all that time; that he slept in the barn; that one night he "got dry and got up and went out to the pump to get a drink;" that in passing some grape vines he "heard somebody talking low;" that they were "rolling around on the grass and talking;" that one was a man and the other a woman, but he could not tell who they were; that he "could only see something white and something black tumbling around on the grass;" that the "woman's dress was open, and the fellow was pulling off bunches of grass and trying to put them down her person," and that "they were mixed up." The witness further testified that he thought he recognized the voice of one of the persons to be that of a man by the name of Osborn.

At the trial the court gave verbal instructions to the jury. Objection was made by the defendant to one of these instructions, which is set forth in the bill of exceptions as follows:

"The defendant has introduced the evidence of two persons as to what took place at Stillson's. The witnesses, Horner and Burch, have narrated what they saw and heard, or what they thought they saw and heard, on the occasion mentioned by them. You must recollect for yourselves what they testified to, and whether the witness Horner could see and identify the prosecuting witness as one of the persons or things he saw or thought he saw rolling and tumbling on the grass in the positions described by him, is for you to determine in the light of the surrounding circumstances. This evidence was introduced by the defendant as tending to impeach the prosecuting witness, and you are to consider it for no other purpose. Upon the question of impeachment I instruct you that the defendant has the burthen of that issue. He must produce evidence enough on that proposition to overturn the plaintiff's evidence on the same point before such impeachment is established. An attempted impeachment falls to the ground unless it is sustained by a preponderance of the evidence."

The other instructions, if any were given, are not in the record. Concerning the above instruction the bill of exception recites that it "was all the instruction given by the court upon that subject and was the only comment made by the court as to the evidence of said two witnesses."

The appellant's counsel vigorously attacked the instruction in question for the reason that it limits the effect of the testimony given by the witness Horner to the impeachment of the relatrix. In a bastardy suit the relatrix is not a party. Ex parte Haase, 50 Ind. 149; State, ex rel., v. Smith, 55 Ind. 385. Theoretically, the suit is not for her benefit, but is intended for the benefit of the child. For the reason that the relatrix is not a party it has been held that her admissions can only be proven for the purpose of impeachment. Houser v State, ex. rel., 93 Ind. 228; Tholke v. State, ex rel., 50 Ind. 355. In Tholke v. State, ex rel., WORDEN, J., and PETTIT, J., dissented, for the reason that they were of the opinion the relatrix was so far a party, that her admissions as such ought to be given in evidence against her, like the admissions of other parties. In a bastardy case it may be proved as a substantive fact that the relatrix had intercourse with men other than the defendant about the time she claims the child was begotten. Benham v. State, ex rel., 91 Ind. 82; O'Brien v. State, ex rel., 14 Ind. 469. For the purpose of proving this fact the relatrix may be compelled to testify in relation...