Unruh v. State ex rel. Baum

• Decision Date: 26 January 1886
• Docket Number: 11,494
• Citation: 4 N.E. 453,105 Ind. 117
• Parties: Unruh v. The State, ex rel. Baum
• Court: Indiana Supreme Court

4 N.E. 453

105 Ind. 117

Unruh v. The State, ex rel. Baum

No. 11,494

Supreme Court of Indiana

January 26, 1886

From the Porter Circuit Court.

The judgment is reversed, at the cost of the relatrix, and the cause remanded with instructions to the court to sustain appellant's motion for a new trial.

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

A. L Jones and F. P. Jones, for appellee.

OPINION

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 or 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 had been 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, ex rel., 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, 104 Ind. 557, 4 N.E. 153; Brown v. Anderson, 90 Ind. 93; Ohio, etc., R. W. 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 reduced to writing by the justice, as provided by the statute. R. S. 1881, section 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, ex rel., 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 subpoena, 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 can not 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 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 interest, 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 made; that they were precisely identified; that the language was correctly remembered and accurately repeated by the witnesses, then, as a matter of law, such testimony was entitled to great weight.

The second is, that if the person making the admission may not have expressed his or her own meaning clearly and understandingly; or if the witnesses 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 witnesses are liable to be mistaken; or if from interest, bias or prejudice, the admissions appear to be unreasonable, or colored and exaggerated, then, as a matter of law, but little reliance should be placed upon the testimony of such admissions.

The instruction is substantially a copy of section 200, 1 Greenleaf on Evidence. We have no fault to find with that section as an abstract proposition, but this court has several times held that to embody it in an instruction to the jury is erroneous, because the court thereby declares as a matter of law what ought to be left to the jury to determine as a matter of fact. In speaking of embodying the text of law writers in instructions, this court, in the case of Garfield v. State, 74 Ind. 60, said: "It is not every statement of the law found in a text-book or opinion of a judge, however well and accurately put, which can properly be embodied in an instruction. The processes of reasoning by which a conclusion is reached, if well made, are appropriate to be found either in text or opinion, but rarely, if ever, is it proper to deliver such reasoning to a jury in the form of instructions."

In the case of Davis v. Hardy, 76 Ind. 272, in speaking of an instruction, in all essentials identical with that under consideration, and of the above section from Greenleaf, this court said: "To give it in a charge, as written, would in this State, be an invasion of the jury's exclusive right to judge of the credibility and weight of evidence. It is proper matter of argument that such evidence is subject to imperfection and discredit, for the reasons suggested, and the court may direct the jury's attention to the subject. But it is not for the court to say as matter of law, in reference to the evidence of this kind, given in a particular case, that it is subject to much imperfection; or that 'it frequently happens that the witness, by unintentionally altering a few expressions really used, gives an effect to the statement completely at variance with what the party did say;' or that, 'where the admission is deliberately made and precisely identified, the evidence is often of the most satisfactory nature.' These are matters of fact, experience and argument, but not...