Rinehart v. State ex rel. Keith
| Decision Date | 29 November 1899 |
| Docket Number | 2,954 |
| Citation | 55 N.E. 504,23 Ind.App. 419 |
| Parties | RINEHART v. THE STATE EX REL. KEITH |
| Court | Indiana Appellate Court |
From the Madison Superior Court.
Affirmed.
B. R Call and C. M. Greenlee, for appellant.
Dean & Dean and D. W. Scanlan, for appellee.
This was an action to establish the paternity of the illegitimate child of the relatrix and to provide for its maintenance. The case was tried by a jury and resulted in a verdict finding that appellant was the father of the child. Appellant's motion for a new trial was overruled, and the court fixed the amount to be paid by appellant for the support of the child at $ 500, and rendered judgment accordingly. The record also shows that appellant moved to modify the judgment, which motion was overruled. Overruling the motions for a new trial and to modify the judgment are assigned as error.
The second and third reasons assigned for a new trial are that the verdict is contrary to law, and that it is not sustained by sufficient evidence. Appellant has argued at some length that the evidence is not sufficient to support the verdict and judgment. We have read and carefully considered all the evidence, and we find that there is an abundance of evidence in the record upon which the jury were authorized to find that appellant was the father of the relatrix's child. In fact, we do not see how they could have reached a different conclusion. It is enough for us to say that there is much legitimate evidence in the record to support the verdict, and while there is some conflict as to the material fact at issue, yet we are not at liberty to weigh the evidence, and hence the judgment must stand unless the record presents some reversible error.
Appellant's fourth reason for a new trial was based upon newly discovered evidence and was supported by the affidavit of appellant, and one Bradley, as to what the evidence was. These affidavits stated that Bradley, one of the affiants, would testify, if a new trial should be granted, that he had sexual intercourse with the relatrix about the time when she testified she became pregnant by appellant. There are two reasons why the facts stated in the affidavits were insufficient to warrant the granting of a new trial; (1) the newly discovered evidence was merely cumulative, and (2) due diligence was not shown why the evidence was not sooner discovered. There was some evidence introduced which, if the jury believed, they could have found that at about the time the relatrix testified she became pregnant she had improper relations with other men. It is plain that the newly discovered evidence relied upon was purely cumulative, and that it has long been the rule in this jurisdiction, from which no variance has been made, that a new trial will not be granted for newly discovered evidence when such evidence is merely cumulative. Hines v. Driver, 100 Ind. 315; Wall v. State, ex rel., 80 Ind. 146; Baldwin v. Shill, 3 Ind.App. 291, 29 N.E. 619; Cincinnati, etc., R. Co. v. Lutes, 112 Ind. 276, 11 N.E. 784. In his affidavit in support of his fourth reason for a new trial, appellant states that neither he nor his counsel knew, until after the trial, that Bradley would testify as stated, and that they could not have discovered such newly discovered evidence by the exercise of reasonable diligence. The affidavit is silent as to any affirmative act on the part of appellant looking toward the discovery of such evidence, and failing in this, the affidavit is insufficient. The law requires the exercise of reasonable diligence and watchful vigilance on the part of the litigants in the preparation for the trial of their cause, and courts will not grant them relief on account of their own laches. A party asking for a new trial on the ground of newly discovered evidence must show facts from which the court can determine whether he has exercised due diligence. Hines v. Driver, supra; Wall v. State, ex rel., supra. Another wholesome rule is that newly discovered evidence relied upon for a new trial should be so strong, clear, and convincing, that it would likely change the result, before a new trial should be granted for that reason. Freeman v. Hutchinson, 15 Ind.App. 639, 43 N.E. 16; Morrison v. Carey, 129 Ind. 277, 28 N.E. 697; Thornburg v. Buck, 13 Ind.App. 446, 41 N.E. 85; Sullivan v. O'Conner, 77 Ind. 149; Richter v. Meyers, 5 Ind.App. 33, 31 N.E. 582; Simpson v. Wilson, 6 Ind. 474; Jackson v. Swope, 134 Ind. 111, 33 N.E. 909.
By the fifth to the sixteenth reasons, inclusive, for a new trial the giving and refusing to give certain instructions are questioned. Appellant has waived, by his failure to discuss them, all except the giving of the fifth instruction on the court's own motion, and the refusal to give instruction numbered two, tendered by the appellant. We will consider these in their order. Instruction number five, given by the court, is as follows: "If you find from a preponderance of all the evidence that the relatrix Mettie M. Keith has been delivered of a bastard child, and that said child is now living, and that the defendant Jacob Rinehart is the father of such bastard child, it would make no difference how immoral the relatrix has been, or what acts of intercourse she has had with other men, as the purpose of this suit is to determine the paternity of such bastard child and provide for its maintenance and education." Appellant concedes that the instruction is technically correct, but that it is palpably wrong when considered in the light of the defense made. Counsel for appellant rested their defense upon the ground that the relatrix was a prostitute and had indiscriminately had sexual intercourse with men other than appellant at or about the time she says she became pregnant, and this being true, it was impossible for her to say who the father of her child was....
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