Perry v. State ex rel. Snyder
| Decision Date | 16 February 1917 |
| Docket Number | 9,153 |
| Citation | 115 N.E. 59,63 Ind.App. 653 |
| Parties | PERRY v. STATE OF INDIANA, EX REL. SNYDER |
| Court | Indiana Appellate Court |
From St. Joseph Circuit Court; Thomas W. Slick, Judge pro tem.
Action by the State of Indiana, on the relation of Mary Mandy Snyder, against Donald Perry. From a judgment for plaintiff the defendant appeals.
Affirmed.
Charles Weidler, Orie Parker and Samuel Pettengill, for appellant.
Chester R. Montgomery, Samuel P. Schwartz and DuComb & DuComb, for appellee.
This is an appeal from a judgment in a bastardy proceeding instituted before a justice of the peace of St. Joseph county. The justice found that appellant was not the father of the bastard child. There was an appeal to the circuit court of said county, where the case was tried by a jury before the Hon. T. W. Slick, who, on account of the "serious illness" of the regular judge of such court was, by such regular judge, appointed "to try all cases and transact all business of said Court * * * from the 5th day of October 1914 until further order."
The jury found that appellant was the father of the child, and judgment was rendered ordering appellant to pay to the relatrix $ 500 for the education and maintenance of said child. Appellant's motion for a new trial was overruled. From said judgment appellant appeals and assigns the following alleged errors:
Under his first assigned error, appellant first urges that the verdict of the jury is not sustained by sufficient evidence and insists that, where it appears from the record that substantial justice has not been done, this court should and will disregard a mere scintilla of evidence, citing McClellan v. State (1913), 54 Ind.App. 144, 101 N.E. 387. The case cited, while recognizing the rule contended for by appellant, holds, in effect, that it has no application in a case where, like the one under consideration, the relatrix herself testifies to all the facts necessary to justify the conclusion reached by the jury.
In the instant case, the relatrix testified that, on April 8, 1913, her thirteenth birthday, the appellant had intercourse with her in a bedroom at the home of appellant's father; that she never had intercourse with any other person before or since; that her bastard child was born January 11, 1914. The uncontradicted evidence shows that relatrix stayed all night at the home of appellant's father the night of April 8, 1913; that appellant's father and mother were away that evening until ten o'clock; that appellant, relatrix and four other children were left together during their absence. The attending physician testified to the birth of the child on January 11, 1914, and that it was fully developed; that the usual period of gestation is nine calendar months. Other witnesses testified to statements made by appellant in which he told them that he had intercourse with the relatrix.
Appellant denied ever having had intercourse with relatrix, and denied the admissions testified to by other witnesses. Other witnesses contradicted some of the facts testified to by the relatrix. There was opinion evidence to the effect that conception, under the facts and circumstances testified to by relatrix, was unusual, but there was no evidence that it was impossible. It is apparent, we think, that the evidence in appellee's favor which we have indicated, supra, is more than a scintilla upon each of the facts essential to the verdict of the jury, and that on appeal it must be held as sufficient to warrant the jury in concluding, not only that appellant had intercourse with the relatrix as testified to by her, but that her conception resulted therefrom, and hence that appellant is the father of her bastard child. Michael v. State, ex rel. (1914), 57 Ind.App. 520, 108 N.E. 173; Evans v. State, ex rel. (1905), 165 Ind. 369, 74 N.E. 244, 75 N.E. 651, 2 L.R.A. (N.S.) 619, 6 Ann. Cas. 813.
Before the trial appellant filed a motion to exclude the child of relatrix from the court during the examination of the jurors and the trial. This motion was overruled and appellant excepted. This action of the court was made a ground for appellant's motion for new trial, and is here urged as reversible error. This was not error. The mere fact that the mother was permitted by the court to have her child with her in court at the trial where the jury might see it affords no cause for reversal. State v. Stark (1911), 149 Iowa 749, 129 N.W. 331, Ann. Cas. 1912D 362; State v. Clemons (1889), 78 Iowa 123, 42 N.W. 562; Hutchinson v. State (1886), 19 Neb. 262, 27 N.W. 113; Benes v. People (1905), 121 Ill.App. 103; Rose v. People (1898), 81 Ill.App. 128; Esche v. Graue (1904), 72 Neb. 719, 101 N.W. 978; Johnson v. State (1907), 133 Wis. 453, 113 N.W. 674; 7 C. J. 994, § 125.
And, in any event, any possible harm which might have resulted to appellant by such action of the court was carefully guarded against and cured by the following instruction given by the trial court: LaMatt v. State, ex rel. (1891), 128 Ind. 123, 27 N.E. 346; Reitz v. State, ex rel. (1870), 33 Ind. 187.
Appellant, in his motion for new trial, as ground No. 9 thereof, set out alleged misconduct on the part of the State as follows, viz.: "It permitted the relatrix to exhibit her child to the jury during the trial of said cause contrary to the direction of the court, all of which facts more fully appear by the affidavits of Charles Weidler, Samuel Pettengill, Bert Perry and defendant, Donald Perry." The affidavits referred to were nothing more than sworn statements made by each of such affiants to the effect that he was present in court during the trial of said cause, and that the matters and facts set out in grounds Nos. 9 and 10 of said motion for new trial are true.
Such alleged misconduct is not available for a reversal of the judgment below for either of two reasons: (1) No such misconduct is shown by the record. The misconduct relied on is an alleged violation of an order or "direction" of the court. The only action taken by the trial court in reference to such matter, disclosed by the record, was the overruling of appellant's motion above indicated, and the overruling of a second motion made by appellant, at the conclusion of appellee's evidence, in which he asked the court to make the record show that the relatrix, on several occasions during the progress of the trial, brought her child into the court and sat with it in her arms near the table of her counsel in full view of the jury. The record before us shows no order or direction of the trial court directing relatrix not to bring her child into the presence of the jury.
It should be stated in this connection, however, that it appears from a third bill of exceptions set out in the record that a second bill of exceptions was tendered by appellant to the regular judge for his signature, in which said motion and the action of the trial court thereon were set out in full, and it appears from such second bill that the court, at the time it overruled appellant's first motion, supra, made the following statement:
This second bill further states, in substance, that after this direction was given by the court, the relatrix, on several occasions, during the progress of the trial, brought her child in her arms to the table of her counsel in full view of the jury. Such second bill, however, was not signed by the court, and it gets into the record by being incorporated into the third bill, which expressly shows the court's refusal to sign it, the purpose of the latter bill being an attempt to save and present the exceptions taken to such refusal. It follows that the matters set out in said second bill are not authenticated by the court's signature, and hence cannot be considered.
(2) If, however, all that is contained in such bill could be considered by the court, the mere fact that it shows that the relatrix brought her child into the court room and sat with it at the table of her counsel in full view of the jury, in the absence of some further showing, would not show reversible error under the authorities above cited, and any possible harm that might have resulted from such conduct because of an exhibition of such child to the jury (if there were such exhibition) and an observance or inspection of its appearance or features by the jury with the idea that such appearance and features could be considered by it in determining whether appellant was its father, was guarded against and cured by the instruction, supra.
In his motion for new trial, appellant assigned as one of the grounds thereof, misconduct of appellee's counsel, in that, during the argument of the cause to the jury, such counsel said to the jury: "There can be no question that a child was...
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