McGoldrick v. State ex rel. Shull

• Decision Date: 01 February 1927
• Docket Number: 12,647
• Citation: 155 N.E. 52,87 Ind.App. 175
• Parties: MCGOLDRICK v. STATE OF INDIANA, EX REL. SHULL
• Court: Indiana Appellate Court

155 N.E. 52

87 Ind.App. 175

MCGOLDRICK v. STATE OF INDIANA, EX REL. SHULL

No. 12,647

Court of Appeals of Indiana

February 1, 1927

Rehearing denied April 29, 1927. Transfer denied March 8 1928.

From Wells Circuit Court; A. Walter Hamilton, Judge.

Bastardy proceeding on the relation of Leora Shull against Travis McGoldrick. From a judgment that defendant was the father of relatrix' bastard child, he appeals.

Affirmed.

Abram Simmons, Charles G. Dailey and Virgil M. Simmons, for appellant.

Charles E. Sturgis, Robert W. Stine and Elmore D. Sturgis, for appellee.

OPINION

MCMAHAN, C. J.

Appellant was adjudged the father of a bastard child of the relatrix; hence this appeal. The only specification in the assignment of error relates to the overruling of appellant's motion for a new trial.

The child in question was born February 4, 1925. The relatrix testified it was begotten June 19, 1924, and that appellant was its father; that she did not have sexual relations with any person other than appellant during May and June, 1924. She admitted having had intercourse with other men, but said such acts took place in the winter time. On her preliminary examination before the justice of the peace, she testified the child was begotten June 11 or 12; that she had had intercourse with other men about two months after she went to Fort Wayne. There is no evidence when she went to Fort Wayne or how long she was there other than that she stated she had intercourse with one man at Fort Wayne in March, and that she had no intercourse with any man between that date and the time she had intercourse with appellant. There is evidence to the effect that she came home from Fort Wayne week-ends and came home to stay June 7, 1924.

Appellant did not testify on the trial and does not deny having had intercourse with relatrix at the time testified to by her. One of his witnesses, a man about twenty-one years of age, testified that he and two other young men had intercourse with the relatrix June 17, 1924, and that he had had intercourse with her once or twice within the period of two months before that time. He also said appellant had intercourse with her June 19, 1924. The relatrix denied having had intercourse with this witness or either of the two young men he mentioned.

The physician who attended appellee at the birth of the child testified the child, from all appearances, was normal, average in weight and well developed, and that, in his opinion, the child had been carried the full time--280 days; that the extreme limits within which a child can be fully developed is from 240 to 330 days. A number of other physicians testified that a fully developed child would not be born 230 days after conception.

Appellant's contention is, that the child, according to the testimony of the relatrix, was begotten June 19, and having been fully developed at birth, which was 230 days after June 19, could not have been his child, and if it was begotten June 19, it could not be told who its father was. These contentions require the weighing of the evidence. This we will not do. The jury evidently disbelieved the witness who testified that he and two others had intercourse with the relatrix on June 17, or at any time within which they or either of them could have been the father of the child. All of the physicians testified that a child might be born 230 days after conception and live, although it would be lighter in weight...