State ex rel. Closson v. David

• Decision Date: 04 October 1900
• Citation: 58 N.E. 83,25 Ind.App. 297
• Parties: STATE ex rel. CLOSSON v. DAVID.
• Court: Indiana Appellate Court

25 Ind.App. 297

58 N.E. 83

STATE ex rel.CLOSSON

v.DAVID.

Appellate Court of Indiana.

Oct. 4, 1900.

Appeal from circuit court, Monroe county; H. C. Duncan, Special Judge.

Bastardy proceedings on the relation of Joe Annie Closson against James A. David. From a judgment for defendant, and an order denying a new trial, relatrix appeals. Reversed.

John R. East and Robert G. Miller, for appellant. Henley & Wilson, for appellee.

COMSTOCK, J.

Prosecution for bastardy. The relatrix testified that she was an unmarried woman; that on the 21st, 23d, and 27th days of August, and on the 3d day of September, 1897, she had sexual intercourse with the defendant; that she had her monthly sickness about the 29th of August, 1897, and did not have a return thereof afterwards; that she was delivered of a bastard child May 29, 1898; and that appellee was its father. She was sustained by the proof of admissions by the defendant of improper relations with her. Appellee, when arrested, escaped from the officers and fled to Illinois. He gave as a reason for his flight that he had been told that it was hard to get out of such a case. He testified that he had never had sexual intercourse with the relatrix. Two witnesses testified, in behalf of appellee, that they had had improper relations with the relatrix.

The first reason for a new trial discussed is the refusal of the court to permit one Otto Hotzer, who had been sworn as a witness in behalf of appellant, to testify. The witnesses, before a statement of the case had been made, had been sworn, and charged by the court not to be present during the hearing of the testimony. The witness, having been called to the witness stand and sworn, said that he had been in the court room and had heard a part of the testimony of the relatrix, but that he had not heard the instruction of the court; that he had not been served with process; that he knew nothing about any service; that he had come to hear the trial. The attorneys for appellant stated that they were not personally acquainted with the witness Hotzer; did not know him; did not know that he had heard any part of the testimony of the relatrix or of any other witness. Appellant then proposed to prove by said witness the following facts: “That on the last of October or the first of November, 1897, said witness had a conversation with the defendant, James A. David, in which conversation the defendant told him [the witness] that he had the relatrix in a family way, and asked the witness to tell him what kind of medicine to give her for it.” The court refused to allow the witness to testify, for the reason that the plaintiff and relatrix had been negligent in not having him properly served with process, and in not preventing the witness from hearing the testimony of the relatrix. In support of the motion for a new trial, appellant filed the affidavit of the relatrix that she was present at the time the witnesses were sworn and instructed to retire from the court room, and when the witness Hotzer was placed upon the witness stand to testify in her behalf, but that up to that time she did not know that he was in the court room, or that he had heard the testimony, or any part of the testimony, of any witness; also, the affidavits of J. R. East and Robert G. Miller that they were the only counsel for the plaintiff, and were present during the trial of the cause, but that before the witness Hotzer was put on the witness stand they did not have any knowledge of his presence in the court room, or that he had heard any testimony in the cause; that said witness had been served by copy of subpœna left at his last usual place of residence, as they were informed; that they did not directly or indirectly cause said witness to remain in the court room and hear any part of the testimony of the relatrix, or that of any other person in the case. We have given the foregoing statement of the evidence introduced, to show the importance of that which was excluded. In Davis v. Byrd, 94 Ind. 525, the trial court had ordered a separation of the witnesses. A witness for the appellant had notice, although not in the court room at the time it was made. He came into the court room, and remained while several witnesses were testifying. It did not appear that appellant was in any way responsible for his presence, or had any knowledge of his violation of the order of court. Upon motion of appellee the testimony of the witness was excluded. The judgment of the trial court was reversed. The court say: “A witness who disobeys the order of the court excluding him from the court room should be punished, and severely punished, for his disobedience; but this punishment should fall on the guilty person, and not on an innocent party. It is difficult to imagine any principle of law which will justify the punishment of an innocent party for the contumacious behavior of a witness. A litigant has no authority over the witnesses subpœnaed by him, and is not answerable for their wrongful conduct, and he ought not to be denied a right because a wrong has been committed for which he is neither morally nor legally responsible. It may be a very serious punishment to be deprived of the testimony of a witness, and, if the party is himself free from fault, this punishment should not be visited on him. If, however, he is in fault,-if he has directly or indirectly influenced the witness to disobey the order of the court, or if he has knowingly suffered it,-then it is but just that he should pay the penalty of his wrongful act, by the loss of the witness' testimony. We hold the true rule to be this: Where a party is without fault, and a witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury, upon the question of his credibility. The modern authorities are overwhelmingly in favor of this doctrine. Mr. Bishop...