Michael v. State ex rel. Pearson

• Decision Date: 19 January 1915
• Docket Number: No. 8504.,8504.
• Citation: 108 N.E. 173,57 Ind.App. 520
• Parties: MICHAEL v. STATE ex rel. PEARSON.
• Court: Indiana Appellate Court

57 Ind.App. 520

108 N.E. 173

MICHAEL

v.STATE ex rel. PEARSON.

No. 8504.

Appellate Court of Indiana, Division No. 2.

Jan. 19, 1915.

Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Proceedings in bastardy by the State, on the relation of Eulah Pearson, against Sanford Michael. There was a judgment against defendant, and he appeals. Affirmed.

Christian & Christian and Phil J. Fariss, all of Noblesville, for appellant. John F. Neal and Noel C. Neal, both of Noblesville, for appellee.

IBACH, J.

There was a judgment against appellant in a bastardy prosecution. The only error argued on appeal is in overruling appellant's motion for new trial.

[1][2] It is first urged that the case falls within the rule announced in Whitman v. State, 34 Ind. 360, that where the prosecuting witness has had sexual intercourse with many men, near the time when the child was begotten, and there are no peculiar circumstances to show which connection produced the pregnancy, the paternity of the child is too much in doubt to fix it upon any one of the men. However, in this case, although several witnesses testified to acts of intercourse between relatrix and men other than appellant, at about the time conception took place, each one of those acts is specifically denied by relatrix. She testifies positively that appellant is the father of her child, and that she had no intercourse with any other boys during April, 1911; her child, a full-term one, being born on January 27, 1912. Her evidence is sufficient to support the verdict, the jury must have believed her rather than defendant's witnesses, and, as we have no right to weigh the evidence, the verdict will not be disturbed on account of the insufficiency of evidence.

[3][4][5] It is urged that counsel for the prosecution made improper remarks in his argument to the jury, but these remarks are not made a part of the record by bill of exceptions, and cannot be considered. Manion v. Lake Erie, etc., R. Co., 40 Ind. App. 569, 80 N. E. 166;Hood v. Tyner, 3 Ind. App. 51, 28 N. E. 1033. Neither does it appear that any proper objection to these remarks was taken, nor can we say that the remarks alleged to have been made were of such a character that appellant's rights were prejudiced thereby.

[6] The showing as to what one Applegate would testify to at a new trial would only tend to contradict relatrix as to an unimportant part of her testimony, would not have a tendency to produce a different result, and...