32 F. 66 | U.S. Circuit Court for the District of Kentucky | 1887
The distinguished counsel having discharged "their duty to their respective clients in this case, it now devolves upon the court and jury to perform their duties in the premises. The case, from its very nature and character, touches our sensibilities, and appeals to our sympathies, in the very strongest manner, but we
Now, gentlemen, on entering upon your investigation of this case, when you retire to consider your verdict, you should first carefully review and weigh the whole evidence as to the material facts upon which the rights of these parties dejiend, without bias, prejudice, or sympathy. It devolves upon the plaintiff to establish to your satisfaction two facts, in order that he may recover: First, that the person seduced was his servant; and, secondly, that that seduction was accomplished as a matter of fact by the defendant. You will have no difficult}? with the first branch of the case, it having been shown that the daughter in this case w?as in the family of the father, was under his control, and was under age, or a minor. The law presumes the relation of servant; that is, that the plaintiff had a right to her services, and that for the wrongful act of seducing her, whereby loss of her service resulted, he may recover. The old idea or theory was that the parent recovered only for the loss of service, together with such actual expense as he may have been subjected to in and about the daughter’s confinement. But it may be said, to the credit of modern jurisprudence, that the law has advanced far beyond this relie of barbarism, and that now the damage resulting from such an injury is not confined to loss of service and attendant expenses, but reaches far beyond, and aims to give compensation to the wounded feelings of the plaintiff. According to the modem rule, the plainti if goes through the form of showing that he was entitled to the daughter’s service, in order to reach the higher piano of injury and wrong, for which he is entitled to compensation. This first element of the case to be established by plaintiff, viz., that the seduced person was his servant, is not contested by the defense, is fully shown by the undisputed evidence introduced, and you may therefore consider that branch of the case out of the way.
The controverted issue in the case turns upon the question whether, as a matter of fact, the defendant was the person who seduced or debauched the plaintiff’s daughter, and was the father of the child of which she was delivered. That is the all-important fact to he determined by you. You must not concern or bother yourselves as to how the defendant may have accomplished the act, (if he did it,) or the precise hour of the day, or the exact place at which he did it. The question is, does the proof show to your satisfaction that the defendant was the father of the child the plaintiff’s daughter gave birth to? That is the controverted issue and question of fact. Now, when you retire to consider and determine that material and vital fact, which you must determine for yourselves, (as the court can only aid you by some general rules relating
You are met in the very outset of your investigation with those unfortunate conflicts in the evidence which generally arise in cases of this character. As sensible men, you, as well as these lawyers, know that the fact of illicit intercourse or connection can rarely be established by direct or positive evidence of eye-witnesses to the overt act. Positive testimony, aside from the parties to the act, is not to be expected. The seduced person is a competent witness, and the plaintiff had the right to call his daughter as a witness. It would have been the subject of grave comment for him not to have called her, and given you an opportunity of hearing her statement of the matter. The defendant, in his own way and manner, has positively denied her statement. You cannot reconcile the testimony of these two witnesses, but must determine for yourselves, in connection with all the evidence, which you will believe. There are other conflicts in the evidence, bearing upon the main fact, which you should endeavor to reconcile and harmonize if you can. The court can only give you a few general rules as guides for weighing and deciding between testimony that cannot be reconciled.
When there is irreconcilable conflict in their statements, you can look to the intelligence of the witnesses; to their interests in the suit, or its result; to their relationship to the parties. A witness may be strongly biased by his or her relation to the litigants; and you should consider how far, if at all, such relationship has biased, controlled, or influenced such witness or witnesses in his or their testimony. You can also take into consideration the fact that the witness may be friendly to one side and hostile to the other. You can also look to the manner and bearing of the witness in testifying. Does the witness show a zeal in stating facts favorable to one side, and a reluctance in disclosing facts which would benefit the other? Does he testify in that frank, candid, and straightforward way which a witness should do under the solemnity of
Yow, gentlemen, take these general rules as guides with your own every day experience and apply them to the testimony given before voir, and determine on which side of this case the truth lies. You are not permitted as a juror to go out of the jury-box and tell your associates what you may or might know about the matter in controversy, if anything, not having been placed upon the witness stand and subjected to cross-examination, which is the safest method known to the law of ascertaining the truth. .But, while that is so, yon may apply your experience in weighing and considering the statements made by witnesses, and in determining which sido of conflicting and contradictory evidence best harmonizes with such experience and the probability of truth; and having thus satisfied yourself, your duty will be to decide accordingly. Do not lose sight of the real issue, which is, was the defendant the father of the child which the plaintiff’s daughter gave birth to on the tenth day of July, 1885? As I have already stated, the plaintiff had the right to put his daughter on the witness stand to state the transaction as she alleges it occurred. She has done this, and you have not only heard her evidence, but have seen her manner of testifying, and it is for you now to test and determine the truth of her statement. The defendant has also been put upon the stand and positively contradicts every material statement made by her. You have seen his manner and bearing. Both testified under tlio solemnity of an oath, and one or the other has sworn falsely. It is for you'to determine which has told the truth, in the issue that is presented here, the general character of the pluintifFs daughter for chastity is involved. The defense had the right to attack her general character for chastity, and to have broken down in that way any probability that defendant was the father of her child, even if he liad had intercourse with her; but they have not done so, — that is, no attack has been made upon her general character for chastity; and the court instructs that you should allow no suspicion to cross your mind that she had previous intercourse with any other man who was the father of her child. It may be that I am stating that too strong, and I withdraw that statement or instruction. What I moan is that, not having attacked her general character for chastity, you cannot infer that she was
For the plaintiff, it is insisted that the daughter’s testimony is corroborated in all essential particulars by the evidence of her mother, and by the testimony of her sister. The contention for the defendant is that his denial of the seduction is corroborated by the fact (as claimed) that there were people in and about his office on the twelfth of October, 1884, at or about the time when it is claimed that the act of seduction occurred; that there were people in his office, and his office-room was so exposed to and surrounded by visitors that it was improbable that the transaction took place as stated. There are some facts and circumstances about which there is no controversy. The girl did have a child on the tenth day of July, 1885. In the ordinary period of gestation, that child was begotten on or about the tenth or twelfth or middle of October, 1884. The child was begotten about the time stated by the plaintiff’s daughter.' It does not appear that the child w'as born prematurely; nor is it shown to have been different from the ordinary period of birth. It is a fact that the girl was on the premises the day of the alleged seduction. It is a fact, unquestioned, that the defendant was on the premr ises that day, and in the house where it is claimed the seduction took place. The mother and sister state that the plaintiff’s daughter was called by the defendant to that house on that day. The daughter also states that she was called by the defendant, and went there by direction of her mother. The defendant denies their statement. No other witnesses on either side testify to that fact. Which do you believe? It is for you to determine. Defendant not only denies calling the girl to his office, but also denies that he had anything to do with her, — that he had any sexual intercourse with her then and there, or at any other time or place; and in corroboration of his statement seeks to show that Gideon Hughes, John Wynn, and John Gay, and perhaps others, were there on that day, and that it was improbable, if not impossible, that he could have accomplished the seduction under such surrounding circumstances. Three credible witnesses, Mr. Lancaster, Dr. Dougherty, and Mr. Harris, are brought in, and swear before you that Gideon’ Hughes’ reputation in the neighborhood for truth and veracity is bad, that he is unworthy of belief, and that they would not believe him on oath. On that testimony, if you believe it, you have the right to discredit all that Gideon Hughes has stated, except in so far as he is corroborated by the testimony of other witnesses whom you do believe. All the witnesses stand before you as equally credible, except so far as they may have discredited themselves by false statements, or been discredited by other witnesses, or impeached.
The plaintiff’s daughter says that she was called over to the defendant’s office some time before dinner, or after her mother had commenced getting dinner, or while she was making preparations to get dinner. The
It has been earnestly pressed upon you by connsol for the defense that you cannot find for the plaintiff without finding that tho defendant committed a rape upon the daughter, for which offense he is now being prosecuted in the state courts. The court instructs you that the rape suit has nothing to do with this case. This is a suit by tho plaintiff to recover $20,000 for the seduction of his daughter. It does not involve any question of rape; and the evidence as detailed before you does not involve the crime of rape at all. Under the evidence in this case, no court could convict the defendant of rape. Tho daughter, according to her own testimony, made no outcry; she made no immediate complaint; she made no such resistance as the law' requires, hut yielded a hesitating and reluctant consent, on her own statement of the affair. The law would not find the defendant guilty of the crime of rapo — a felony punishable by death under tho law's of Kentucky — under such circumstances. You have nothing to do with the question oi rape. The question which you
Now, gentlemen of the jury, you have the main question before you. Witnesses differ as to dates. They differ as to the time when the defendant returned to his place after the plaintiff reached there with his family early in October. Whether the defendant got there Friday morning or Friday night, Saturday morning or Saturday night, is wholly immaterial. These differences may test recollection, but the fact is not material. Nor is it material whether the second act of illicit intercourse took place two or three days or a tveek after the first; or after defendant had left the place and come back again, as the daughter stated on the stand. The material question is, did he have carnal knowledge of the girl, and was a child born to her on the tenth July, 1885, as the result of that connection? You may take these dates^ or consider the testimony as to dates, and see how far-the accuracy of a party’s recollection is concerned or affected thereby. Do not be misled by them. The thing for you to look to and determine is, was the defendant guilty of the act charged?
Now, gentlemen of the jury, if you find (and the court has cautioned you to act without allowing any sympathy to bias your judgment, but to weigh the evidence, giving credit to the witnesses you believe have stated the truth) that the defendant was guilty of the act charged, — the seduction of the plaintiff’s daughter, — then you are next to consider the question of plaintiff’s damages. As I have already stated, the plaintiff, in such cases, was originally awarded damages on the theory of simply compensating him for the loss of his servant’s service, together with the expense, labor, and care of her confinement. But, to the credit of our modem jurisprudence, the law has advanced beyond that relic of barbarism, and the father now is entitled, not only to compensation for loss of services and expenses attendant upon his daughter’s confinement in such cases, but for all that he can feel from the nature of the injury. I do not' put the case to you as involving vindictive damages, but I do put it to you as strongly as language can express it, — that if you find the defendant had sexual.intercourse with the plaintiff’s daughter, and, as a result of that intercourse, that a child ivas bom to her July 10, 1885, the -plaintiff is entitled to recover, as damages, all that you choose to give him for his wounded feelings, up to the limit of the sum claimed in his declaration, which is $20,000. A father, of course, feels a consolation in the virtue of his daughter. All right-thinking parents must understand that feeling. You may give the plaintiff damages in your discretion, up to the limit claimed in his declaration, for the loss of that 'comfort and consolation which he had a right to feel in the purity- and virtue of his child. You may take into consideration his loss of hope in the future of his daughter, and compensate him for the same. You
Your first duty is to determime the question whether the defendant committed the act charged against him. Upon that branch of the case do not allow your sympathy or prejudice to run away with you; but, when you shall have found that fact, then this court cheerfully leaves to your determination what compensation you shall give to the injured father, and tells -you that in awarding damages for his wounded feelings, his mental sufferings, his anxiety, his humiliation, and his sense of dishonor, you may go up to tho very limits of the amount claimed by tho plaintiff in his declaration.
Now, gentlemen, take tho case and consider it. I do not think of anything else to which your attention should be called.