State ex rel. Feagins v. Conn
Decision Date | 06 October 1945 |
Docket Number | 36361. |
Citation | 160 Kan. 370,162 P.2d 76 |
Parties | STATE ex rel. FEAGINS v. CONN. |
Court | Kansas Supreme Court |
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.
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:
On the afternoon the evidence was completed the court instructed the jury and among others, instruction No. 7 was given as follows:
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:
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 (State v. Harvey, 112 Iowa 416, 84 N.W. 535, 52 L.R.A. 500, 84 Am.St.Rep. 350); also one eleven months old (Ratzlaff v. State, 102 Okl. 263, 229 P. 278) and likewise a child about a year old (Hanawalt v. State, 64 Wis. 84, 24 N.W. 489, 54 Am.Rep. 588). Regardless, however, of what may be the basis of decisions from other states, the question...
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