34 A.2d 186 | Vt. | 1943
This is a bastardy proceeding and comes here upon exceptions by the defendant. A child was born to the plaintiff on April 6, 1941, which could have been begotten during the period from July 16 to July 24, 1940. The plaintiff testified that she began going with the defendant in June, 1940, and they became engaged about July 14, and thereafter had sexual intercourse on July 16, 19, and 24, 1940, and that she had not had sexual intercourse with any other than the defendant from June 1, 1940, to the present time. She further testified that she had menstruated July 9 to 11, 1940, and that when she did not menstruate in August she discovered that she was in trouble. *301
The defendant excepted to the exclusion of offered evidence that the plaintiff kept company with other men in July, 1940, after the claimed engagement to the defendant, to meet her testimony relative to the engagement and that she did not keep company with other men after becoming engaged. Our attention is not called to any offer to show sexual intercourse with any of these men.
Evidence of the relationship between the complainant in a bastardy proceeding and other men than the defendant in order to be admissible, must be offered for the purpose of showing or reasonably imputing sexual intercourse at a time when the child could have been begotten. Lohsen v. Lawson,
The only question to be determined in such a case is whether the defendant begot the child. On this issue evidence is admissible which shows the character of the intimacy between the parties. 7 Am Jur Bastards, Sec. 117. Thus in Thayer v. Davis,
The fact of such engagement was not directly involved as an element in the case, but was merely a circumstance whose sole office was to induce a belief as to the fact in issue, viz., did the defendant beget the child. While the offered evidence might have some tendency to show that the parties were not in fact engaged, on the theory that an engaged woman does not usually accept attentions from other men, its probative value, in the absence of a *302
showing of circumstances reasonably imputing illicit intercourse, was so slight, that though perhaps logically relevant, it cannot be held to be legally relevant. This is illustrated in Dalpe v.Bissette,
The defendant offered evidence that the plaintiff went to a druggist about a week after July 15, 1940, and stated that she had not menstruated and asked for medicine to bring menstruation about. There were also offers of admissions by the plaintiff that she had not menstruated and that she had asked the druggist for medicine, and that she had received some medicine during July for the purpose of bringing menstruation about. All this evidence was excluded and the defendant excepted. It was offered to refute the plaintiff's testimony that she had menstruated early in July and did not discover her condition until August. In view of the claimed acts of intercourse having taken place after a time when such evidence tended to show she had passed her monthly period, and the possibility that her child may have been begotten before that time, the offered evidence bore directly upon the issue of paternity, and should have been received. Its exclusion was prejudicial error.
It is unnecessary to consider the other exceptions.
*303Judgment reversed, and cause remanded.