Unruh v. State ex rel.Baum.

• Citation: 105 Ind. 117, 4 N.E. 453
• Case Date: January 26, 1886
• Court: Supreme Court of Indiana

105 Ind. 117
4 N.E. 453

Unruh
v.
State ex rel.
Baum.

Supreme Court of Indiana.

Filed January 26, 1886.

Appeal from Porter circuit court.

E. D. Crumpacker, A. D. Bartholomew, J. H. Gillett, and H. A. Gillett, for appellant.

Jones & Jones, for appellee.

ZOLLARS, J.

The relatrix filed with a justice of the peace a charge of bastardy against appellant, upon which he was arrested. The justice's record shows that on the day set for trial appellant was present in person and by attorney; that the state was represented by its prosecuting attorney; that the relatrix was not present; that the cause was submitted to the court for trial; and that, there being no evidence offered in support of the charge made by the relatrix, the court found for the defendant, (appellant.) On the day following, a transcript of the proceedings was filed in the circuit court. In that court appellant moved to dismiss the appeal, and to dismiss the case. There was no contention nor showing that an appeal had not been taken. The motion to dismiss the appeal was based upon the sole ground that the transcript of the proceedings in the justice's court does not affirmatively show that an appeal was taken. If an appeal was in fact taken, the failure of the justice to note that fact in his docket is not a sufficient cause for dismissing the appeal. In the absence of anything to the contrary, we must presume in favor of the jurisdiction of the circuit court, by presuming that the case came into that court by a regular appeal. Wolf v. State, 11 Ind. 231;Humble v. Williams, 4 Blackf. 473;Littell v. Bradford, 8 Blackf. 185. See, also, Houk v. Barthold, 73 Ind. 21;Johns v. State, ante, 153, (present term;) Brown v. Anderson, 90 Ind. 93;Ohio & M. R. Co. v. Hardy, 64 Ind. 454;Brownfield v. Weicht, 9 Ind. 394.

The ground upon which appellant contends that the case should have been dismissed is that the relatrix was not examined, and her testimony

[4 N.E. 454]

reduced to writing by the justice, as provided by the statute. Rev. St. 1881, § 984. It will be observed that on the day set for trial the relatrix was not present. The prosecuting attorney announced himself as ready for trial. Without any objection from appellant, who, with his attorney, was present, and without any effort upon his part to have the relatrix present, and to have her testimony taken and reduced to writing, the case was submitted to the court for trial. The examination of the relatrix, provided by the statute, is for the benefit and protection of the defendant, and he should not be deprived of it by any ingenious practice by those representing the state. The right to such an examination, however, is a right that the defendant may waive. Smith v. State, 67 Ind. 61. In this case appellant must be treated as having waived that right. If he desired an examination of the relatrix, and her testimony reduced to writing, he might have procured a subpœna, and thus had her brought before the court. He was bound to know that the state could appeal, and that the case would thus go to the circuit court without the examination of the relatrix, unless, by some effort of his, that examination was procured. Having made no such effort, he cannot now be heard to complain that the examination was not taken.

Appellant assigned as a cause for a new trial the giving of the fifth, sixth, and ninth of the court's instructions. The ninth is as follows:

“Certain admissions claimed to have been made by both the relatrix and also by the defendant are in evidence. Such admissions are competent evidence, and may be of the most satisfactory character, or they may be of the very weakest kind of testimony, depending upon the surrounding circumstances. If you can see from the evidence that the alleged admissions were clearly and understandingly made; that they are precisely identified; that the language is correctly remembered, and accurately repeated by the witness,-then such testimony is entitled to great weight. On the other hand, if the person making the admission may not have expressed his or her own meaning clearly and understandingly; or if the witness may have misunderstood him or her; or if the witness had no reason or motive for remembering the exact language used; or if, from lapse of time, it is seen that the witness is liable to be mistaken; or if, from interests, bias, or prejudice, the admission appears to be unreasonable, or colored and exaggerated,-then but little reliance should be placed upon this class of testimony.”

This instruction starts out with a statement of what is a fact: that there is evidence of admissions, both by the relatrix and by appellant. Then follows the enunciation of two propositions of law. The first is that if the jury could determine from the evidence that the admissions were clearly and understandingly...