Opp v. Davis

• Decision Date: 23 January 1962
• Docket Number: No. 2,No. 19621,19621,2
• Citation: 133 Ind.App. 365,179 N.E.2d 298
• Parties: Franklin E. OPP, Appellant, v. Dora DAVIS, Appellee
• Court: Indiana Appellate Court

Page 298

179 N.E.2d 298

133 Ind.App. 365

Franklin E. OPP, Appellant, v. Dora DAVIS, Appellee.

No. 19621.

Appellate Court of Indiana, Division No. 2.

Jan. 23, 1962.

Wilbur A. Royse, Lawrence Turner, Jr., Indianapolis, for appellant.

Gordon Davis, Albert Ewbank, Indianapolis, for appellee.

KELLEY, Presiding Justice.

Appellant was adjudged by the Juvenile Court of Marion County be the father of three children born out of wedlock to appellee. The adjudication resulted from the filing by appellee in said court, and the consequent hearing thereon, of three petitions charging appellant with the fatherhood of a girl born January 14, 1959, and twins, a boy and a girl, born February 26, 1960. Said petitions were consolidated for hearing and evidence was presented by both parties on the issues raised by said petitions and appellant's answers in denial thereof. The court, without jury, found appellant to be the father of said children and, by separate judgment on each petition, adjudged that appellee recover of appellant for prenatal, post-natal, birth care, attorney fees, and support of said children, the total of which on all three judgments is $668.44 for pre-natal, post-natal, and birth care; $510.00 for attorney fees; and $6.00 per week for support of each child.

As provided for in § 3-640, Burns' 1946 Replacement, appellant duly filed his motion for a 'new hearing', containing eight (8) specifications or grounds therefor, and a supporting affidavit as a part of said motion, which motion was overruled by the court. The assigned error is the overruling by the court of said motion for a new hearing.

The case, on appeal, is fraught with difficulty which apparently arises out of the change in phraseology and purpose found in said § 3-640, Burns' 1946 Replacement, and § 3-623 thereof, being §§ 1 and 18, ch. 112, Acts 1941, from the phraseology employed in the prior act of 2 R.S.1852, §§ 1 to 22, inclusive, as amended, which were formerly designated as §§ 3-601 to 3-622, Burns' Ann.Sts. The said sections of the latter mentioned act were repealed by § 35 of ch. 112, Acts 1941. The former act, now repealed, was commonly referred to as the 'bastardy' act, and in Saint v. State ex rel. Hosier (1879), 68 Ind. 128, it was held to be a 'civil proceeding' and that 'new trials' could be granted as in other civil cases. The proceedings thereunder were initiated before a 'justice of the peace' by 'any woman' who has been delivered of, or is pregnant with, a 'bastard' child.

It may be fair to say that the commonly known opprobrium which unfailingly attached to the defenseless children born as such 'bastard' children, and which frequently attached to innocent, but live-laden and deceived, young girls, and often attached to guiltless, but designed upon, males, exerted a motivating influence for the enactment of said ch. 112 of the Acts of 1941, which, as before stated, repealed the old 'bastardy' act in toto, and also enacted more adequate provisions for the protection of such children and relaxed the rigid code rules of trial procedure which prevailed under the old act of 1852. The whole act, 1941, evinces a consciousness by the Legislature of the fact, as stated by our Supreme Court, that cases of this type, as in juvenile cases, present problems that are 'social rather than legal.' Quotation from State ex rel. Gannon v. Lake Circuit Court et al. (1945), 223 Ind. 375, 385, 61 N.E.2d 168.

Among others, the act of 1941 contains a pronounced change relative to the presentation after the hearing of matters and occurrences during the hearing which may have an influential effect on the result reached or which may have served to deprive the party or parties of a fair hearing. Under the old act of 1852, as interpreted by the Supreme Court in the Saint v. State case, supra, there existed only the right to a 'new trial' upon the several grounds therefor provided by the code, § 2-2401, Burns' 1946 Replacement, the motion for which was required to be filed within thirty (30) days from the time the verdict or decision was rendered, § 2-2403, Burns' 1946 Replacement. Under the 1941 act, however, all this was changed and it is provided that the 'aggrieved' party may file a motion for a 'new hearing' and that the same by filed within ten (10) days after the 'finding' or verdict. No grounds for such motion are prescribed by the act. Consonant, also, with the evident legislative intent to cast these proceedings in a cloak of respectability free from 'scourge of the tongue' (Job 5:21), it is provided in § 3-638, Burns' 1946 Replacement, that 'The court shall exclude the general public from the hearing.'

The phases of the 1941 act to which we have made reference, together with others that could be mentioned, can lead only to the logical legal conclusion that by the new act of 1941 the legislature sought to wipe out the apparent social inequities of the old act and relax the strict, formal, and rigid rules of trial and grounds for new trial which prevailed under judicial construction of the former act. It is to be noted, also, that the 1941 act in no part thereof provides for a 'trial', with its usual legal connotations. Throughout, it provides only for a 'hearing.' It is a rule of statutory construction that a change of phraseology from that of the original act 'will raise the presumption that a change of meaning was also intended.' Chism et al. v. State of Indiana (1932), 203 Ind. 241, 244, 179 N.E. 718, 719. In changing the provisions of the old act, which had been interpreted by the courts to require a formal trial and a motion for new trial for purposes of a review of the proceedings, to that of a hearing and motion for a new hearing of such proceedings, there can be no more than fragmentary doubt that the end sought thereby was to afford the greatest reasonable latitude in paternity proceedings for the ascertainment of the truth of the accusation made and the consequent protection and welfare of the guiltless children.

These observations supply a guide to consideration of the matters posed by this appeal. The evidence is of such nature as not to be worthy of delineation nor would a resume thereof serve any beneficial purpose herein. It appears that the month of conception of the first child was May, 1958, and the month of conception of the twin children was June, 1959. The accuracy of these stated conception times with reference to the normal period of gestation is not referred to in the evidence and would be without influence except when considered in connection with the grounds set forth in appellant's motion for a new hearing and the record admission by appellee that she was at one time convicted of prostitution.

At the conclusion of the direct and cross-examination of appellant, the court granted appellant's request for time in which to locate additional witnesses and continued the hearing to September 30, 1960. On the latter day the cause was again continued to October 20, 1960, by reason of want of service of subpoena on the additional witnesses for the defense. On said October 20, 1960, appellant made showing of the service of the subpoena on five named male persons. Three of the five appeared and testified they had no sexual relations with appellee. The court refused to permit examination by appellant of said witnesses as to previous statements contrary to their present testimony on the ground that such examination constituted attempted impeachment of the witnesses without a foundation first laid. Objections to other questions put to the witnesses were sustained on the ground that they were not specific as to time and place.

Appellant's counsel informed the court that the two persons subpoenaed but who failed to appear for the hearing had told appellant that they would not 'show up'. After the examination of the three males who did appear, counsel for appellant stated to the court that ...