State v. Lyons

• Decision Date: 10 May 1919
• Docket Number: 21,763
• Citation: 104 Kan. 702,180 P. 802
• Parties: THE STATE OF KANSAS, ex rel. CECIL BROWN, Appellee, v. PAUL LYONS, Appellant
• Court: Kansas Supreme Court

180 P. 802

104 Kan. 702

THE STATE OF KANSAS, ex rel. CECIL BROWN, Appellee, v. PAUL LYONS, Appellant

No. 21,763

Supreme Court of Kansas

May 10, 1919

Decided January, 1919.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ILLEGITIMATE CHILDREN--Period of Gestation--Instructions. On the facts stated in the opinion, held, in a bastardy proceeding, it was not error to refuse instructions that the period of gestation is 280 days; that the intercourse must have occurred on a certain date; that if defendant had shown by a preponderance of the evidence he was somewhere else on the date fixed by the relatrix, then the verdict must be in his favor; and that if the jury should find the evidence equally balanced upon the question as to whether he was the father of the child, they should find in his favor.

2. SAME--Opportunity to Show Ulterior Motive of Relatrix. The record fails to sustain the contention that defendant was denied an opportunity to show an ulterior motive actuating the relatrix in charging him with being the father of her child.

3. SAME--Resemblance of Child to Defendant--Closing Argument of Counsel. In a bastardy proceeding where the child was three and a half months old at the time of the trial, held (following The State, ex rel., v. Browning, 96 Kan. 540, 152 P. 672), that there was no error in refusing an instruction that the appearance and resemblance of the child to the defendant should not be considered in determining its paternity; and further, that defendant was not prejudiced by failure to sustain an objection to certain remarks made by counsel for the state in the closing argument, with respect to the resemblance between the child and defendant.

4. SAME--Minor Defendant--Guardian ad Litem. The defendant in a bastardy proceeding, who was under seventeen years of age at the time of the trial, made no request for the appointment of a guardian ad litem. He was represented by able counsel, and his parents, who were present in court. Held, that the record discloses no error in failing to appoint a guardian ad litem.

5. STATUTE--Extending Period of Minority of Females--Not Retroactive. Chapter 184 of the Laws of 1917, extending "the period of minority . . . in males and females to the age of twenty-one years," did not change the status of one who had already reached the age of majority under the former law. (Smith v. Smith, ante, p. 629, 104 Kan. 629, 180 P. 231.)

Ord Clingman, of Lawrence, and Fred Robertson, of Kansas City for the appellant.

S. M. Brewster, attorney-general, and J. B. Wilson, county attorney, for the appellee.

OPINION

PORTER, J.:

In this proceeding the appellant was adjudged to be the father of a bastard child and required to give bond for the payment of $ 1,200 towards the infant's support.

On July 29, 1917, when the child was born, the mother, Cecil Brown, was nineteen years old and unmarried. She was a high-school graduate and had attended Kansas University two years. On August 7, 1917, she swore to the complaint charging appellant, Paul Lyons, a boy sixteen years old and still in high school, with being the father of her child. When the trial occurred, on November 15, 1917, the complaining witness lacked but a few days of being twenty years old; she is said to be of prepossessing appearance, and from her testimony it is apparent she is of more than ordinary intelligence and education. Aside from the disparity between her age and that of the appellant, and the fact that she admitted upon the trial to having had intercourse with another person, a brother of the appellant (whether younger than he does not appear), the case presents no unusual features, and depends for the most part upon questions of fact which have been found by a jury. We must assume that the unusual features to which we have referred were fully considered by the jury in determining the truthfulness of the story told by the complaining witness, and that the judge of the trial court, who saw and heard the witnesses on both sides, gave due weight to all the facts and circumstances of the case, in refusing appellant a new trial. The purpose of the proceeding is to provide support for the child. The law and the courts are not concerned with the question as to which of the parents was seduced. The conflict in the evidence has been determined by the jury and the court, and unless the appellant shows error in the proceedings, the judgment must be affirmed.

Miss Brown testified that the intercourse, which resulted in the birth of the child, occurred about eight or nine o'clock on a Sunday night in the latter part of October, 1916, on the roadside about a half mile west of No. 6 schoolhouse, and that neither she nor her parents were aware of her condition until her confinement. It was shown by her testimony and that of the attending physician that the child was fully developed. At the preliminary examination, Miss Brown testified that the second intercourse with the boy occurred in the stone quarry west of the university some time in the winter, and she thought it was in the month of January, 1917; that it occurred about 4 o'clock in the afternoon, on her way home from the university. At the trial, she testified to having had intercourse with him more than once in October and November, 1916. She lived half a mile from appellant's home; she had known him and the family about seven years. While there was testimony from herself and her parents that Paul Lyons came to her home and took her out riding on two occasions in the fall of 1916, the evidence does not show that the two were often in company, or appeared together in social gatherings. She admitted on cross-examination that she had never spoken to him about marriage.

The appellant did not testify. A number of witnesses called in his behalf testified that on each of the five Sunday evenings in October, 1916, he attended a series of lectures given at a church in Lawrence, which began at 7:30 and lasted until 9 o'clock, and that he was present all the time during each lecture.

Complaint is made of the refusal to give eight instructions requested. Most of these were quite fully covered by the instructions given. The court refused to give an instruction that the standard period of gestation is 40 weeks, or 280 days. In The State, ex rel., v. Stout, 101 Kan. 600, 168 P. 853, it was held that an instruction in respect to this matter might have been given, but that it was not error to refuse it. The instruction as requested in this case would have been contrary to the only medical testimony offered, which was that of the attending physician, who testified that the period varies from 270 to 290 days; besides, if the court had given a proper instruction on the subject, it would not have told the jury anything they did not already know. We think the court was right in refusing to instruct that the intercourse which resulted in the birth must have occurred...