State ex rel. Feagins v. Conn

• Decision Date: 06 October 1945
• Docket Number: 36361.
• Parties: STATE ex rel. FEAGINS v. CONN.
• Court: Kansas Supreme Court

162 P.2d 76

160 Kan. 370

STATE ex rel. FEAGINS v. CONN.

No. 36361.

Supreme Court of Kansas

October 6, 1945

Appeal from District Court, Cloud County; Charles A. Walsh, Judge.

Statutory bastardy proceeding by the State of Kansas, on the relation of Dorothy Feagins, against Lester Conn. From a judgment holding defendant to be the father of an illegitimate child the defendant appeals.

Instruction that ultimate purpose of bastardy proceeding was to establish paternity of bastard in question and to require father of such child to contribute to its support so that child would not be wholly dependent upon mother for support or upon charity, when considered with other instructions, was not improper because of reference to charity.

Syllabus by the Court.

1. Whether a minor child indirectly involved in a bastardy proceeding should be exhibited to the jury is a question which rests in the sound discretion of the trial court regardless of whether the proffer is made in behalf of the prosecutrix or by the defendant.

2. In such a case, the giving of the following instruction when accompanied by other proper instructions is not error:

'The ultimate purpose of a bastardy proceeding, such as this, is to establish the paternity of the bastard in question, and to require the father of such child to contribute to its support and maintenance so that the child will not be wholly dependent upon the mother for support, or upon public or private charity for its maintenance and education.'

Ralph H. Noah, of Beloit, for appellant.

Marvin O. Brummett, of Concordia, for appellee.

BURCH Justice.

In a statutory bastardy proceeding the appellant was found to be the father of an illegitimate child. On appeal he asserts error in the giving of certain instructions, in the admission and exclusion of evidence, and in overruling the motion for a new trial. Nothing is to be gained by printing in our reports even a résumé of the evidence. Careful consideration convinces us that there was adequate proper evidence introduced which warranted the jury in finding the appellant guilty.

The principal contention advanced by the appellant is that the court abused its discretion in refusing to allow the eight-months-old child of the prosecutrix to be exhibited to the jury. The child had been in the courtroom for a part of the time during the trial. Testimony was introduced to the effect that when the baby was born it had red hair and a rugged complexion and that the child's hair and complexion were the same at the time of the trial as they had been at the time of the child's birth. A doctor testified that normally characteristics of parents are transmitted to their offspring in one way or another including characteristics as to coloring. The appellant was shown to be a dark-complexioned man and he testified that his parents and grandparents on both sides were all people of dark complexions. The mother of the prosecutrix was shown also to have been a dark-conplexioned woman and we assume that the prosecutrix was likewise. After the prosecutrix had testified that the child she had in the court room in the morning was the child involved in the controversy the attorney for the appellant offered to exhibit the child to the jury. Thereupon the court inquired as to whether there was any objection and upon objection being made, it was sustained. After some colloquy between counsel and the court, during which counsel for the appellant again moved the court to permit the child to be exhibited to the jury, the court remarked as follows:

'The motion will be overruled. I might say in that connection I am not satisfied that it would serve any useful purpose whatsoever. These questions of resemblances of small children are a matter to speculate about, but I think that is as far as it goes. * * *

'I don't believe it is material testimony, and I don't believe that it is testimony of such cogent value that it ought to be considered, and that is the reason for my ruling in the case.'

On the afternoon the evidence was completed the court instructed the jury and among others, instruction No. 7 was given as follows:

'Some references have been made in the evidence to the complexion, color of the hair, and other physical appearances of the child in question. Whether or not the child in question bears physical resemblances to the defendant or fails to bear physical resemblances should not be considered by you in this case as said child has not been exhibited in evidence, and these references to its physical characteristics are not evidence.'

On the next morning the court amended instruction No. 7 and gave the amended instruction, together with instruction No. 8, to the jury as follows:

'No. 7. Some references have been made in the evidence as to the complexion, color of the hair and other physical appearances of the child in question. Such testimony as witnesses gave from the witness stand touching upon those questions you should consider together with all of the other evidence in the case on the question which you are called upon to decide. However, you are instructed that the child was not exhibited in evidence, and you should not consider the physical appearance of the child or attempt to compare its physical features with those of the defendant from your personal observation. As I told you before, if you consider this question you will confine yourselves to a consideration of the testimony of the witnesses who testified in this case upon that subject.

'No. 8. You are further instructed that in considering the testimony of the witnesses with respect to its physical appearances and its resemblances, if any to the defendant that you should take into consideration the age of the child, as it appears from the testimony, the fact that in some instances the physical characteristics of a father may be stamped upon a child so that they definitely appear at the time of birth, that in some instances resemblances may not appear until late in the course of a child's independent development, and that in still other instances resemblances may never appear with recognizable certainty. Sometimes a child may strongly resemble one not its father and not related to it. With the result that such evidence of paternity may be strong or weak or inconclusive, or even worthless, and you are the judges of such matters.'

Thereafter counsel for the respective parties were given additional time to present further argument to the jury pertaining to the subject matter covered by instructions 7 and 8.

Counsel for appellant does not contend that the wording of the instructions is erroneous or that the instructions do not properly and adequately state the law applicable to the subject matter provided the ruling on the request that the child be exhibited to the jury was correct. In other words, appellant's counsel contends that the child should have been exhibited to the jury and that, therefore, amended instruction 7 and instruction 8 should not have been given. The logical question, consequently, is whether the failure to exhibit the child to the jury under the circumstances constituted error on the part of the trial court because no contention of error is developed as to the instructions themselves.

1. The question simply stated is--Can a trial court in a bastardy proceeding refuse to allow the child indirectly involved therein to be exhibited to the jury? Usually such a question arises in instances wherein the state on relation of the prosecutrix seeks to have the child exhibited but no sound reason is suggested as to why the rule should be any different in the event the defendant desires to exhibit the child. On the general question there is a conflict of authority. See 10 C.J.S., Bastards [162 P.2d 78] p. 177, § 92; 7 Am.Jur. 651, § 36, and 7 Am.Jur. 701, § 121. In most jurisdictions it is held that the child always may be exhibited when the question is one of race or color for it is well understood that there are marked external distinctions and differences between races of humanity which may enable the jury, on observation, to judge whether a child is of one face or another. In such cases the question is not dependent upon the age of the child. Such is likewise the rule where the child is marked by some physical peculiarity which is characteristic of the family of the alleged father. See Annotation, 40 A.L.R. 136. In instances, however, where distinctions as to race and marked physical peculiarities are absent, as is true in the present case, the question sometimes turns upon the age of the infant sought to be exhibited. In such connection it is interesting to note that a child nine months old has been held too young (...