16 Ind. App. 154 | Ind. Ct. App. | 1896
Appellant was adjudged the father of the bastard child of relatrix, but asserts he is entitled to a new trial.
There was no error in admitting proof of an existing engagement to marry between appellant and relatrix. It was said by Olds, J., in Ramey v. State, ex rel, 127 Ind. 243: “It was proper to show, the relations existing between these parties, their acquaintance and their intimacy of whatever character it was.” Such evidence is admitted, not because it has any direct tendency to prove illicit intercourse between the parties, but simply because it is an incidental circumstance to inform the jury of the footing upon which they stand toward each other. Marks v. State, ex rel., 101 Ind. 353; Francis v. Rosa, 151 Mass. 532, 24 N. E. 1024.
Relatrix testified that the child was begotten about March 1. Appellant denied having intercourse with her at that time, but admitted that he did so, for the first time, upon April 6 following. Complaint is made because the court required him to answer as to when and how frequently he had such intercourse after that time. While the court held this question proper, and it was asked repeatedly, we have been unable to find any answer which indicated to the jury either when or how frequently this occurred. Even had it been directly answered we are unable to see how appellant could have been harmed thereby. The circumstances surrounding appellant and relatrix, their outward
Exception is taken to the court’s permitting parts of certain letters to be read to appellant while on the stand and in allowing him to be asked “Did you write that language in that letter?” Counsel insist that it was not pi'oper to thus put the letters to the jury by piecemeal, nor to allow a cross-examination based upon the contents of these letters, and that they did not respond to anything brought out upon the original examination. At section 463, i Greenleaf Ev., it is said that on cross-examination counsel will not be permitted to represent, in the statement of a question, the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents or contents to the like effect, without having first shown to the witness the letter, and having asked him whether he wrote that letter, and his admitting that he wrote it. Again at section 465 it is further stated: “A witness cannot be asked upon cross-examination, whether he has written such a■ thing, stating its particular nature or purport, the proper course being to put the writing into his hands, and to ask him whether it is his writing.” This rule, which has been abrogated by statute in England, was founded upon the decision of the Law Judges in the.Queen’s Case, 2 Brod. and Bing. *286, and has been approved in this country so far as it defines the nature of the question
While this is laid down as the ordinary course of procedure, yet the original opinion given by the judge to the house of lords, Greenleaf, Rapalje, and the Yew York Court of Appeals recognize that, while the cross-examiner should ordinarily first make known to the jury the contents of the letter when he offers it on his side of the case, the trial court will, upon proper statement of the necessity therefor, in the furtherance of justice, permit the letter, if otherwise competent, to be read immediately and pending the cross-examination that questions may be asked founded upon it. Here the letters were submitted to appellant before he was interrogated concerning them and he admitted writing them. Counsel have not pointed out nor have we observed any respect wherein the extracts as to which he was particularly questioned, were, in fact, garbled, incomplete, or wrested from their proper connection so as to convey any false impression as to their meaning. The entire letters were subsequently offered and read in evidence, Under these circumstances appellant was not subjected to any unfair treatment, nor was there any possibility of material wrong resulting to him from the mode of examination pursued.
Under the above authorities and Foss-Schneider Brewing Co. v. McLaughlin, 5 Ind. App. 415, there was no error in permitting appellant to be questioned as to certain matters referred to in the letters.
From the statements upon the stand and the letters considered in connection therewith, the jury might well have concluded that appellant’s present version of the facts was not in harmony with the real truth.
This does not mean, however, that on cross-examination no questions may be asked save as to matters particularly brought out by the original examination. On the contrary when a general subject is opened up, the cross-examination may extend to any and all phases of that subject. Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544. Vogel v. Harris, 112 Ind. 494.
Appellant had denied the paternity of the child and the particular act of intercourse by which it came into being. His subsequent conduct and statements as exemplified in portions at least of these letters were to some extent inconsistent with such denial. So far as there was in them anything which could even remotely affect the case they were in a greater or less degree antagonistic to appellant’s theory of the facts. They were therefore properly admitted in evidence.
The trial was had May 22, 1895.' There was evidence that one Joe Gemmill had been raised and lived many years in the neighborhood where appellant lived, but had gone to Chicago in the winter of 1894-5, three or four months before the trial. This Joe Gemmill was a witness for appellant, his deposition having been taken May 8, 1895. He was properly impeached by proof of his bad character in the neighborhood where he had lived so many years. While evidence of character goes to fix the credibility of the witness at the time he testifies, the proof cannot be limited to that particular day, b’ut may extend back for a reasonable period of time, its weight being dependent upon the proximity in time and the other circumstances of the
Later authorities, however, establish the doctrine which we have declared, both in our State and elsewhere. Louisville, etc., R. W. Co. v. Richardson, 66 Ind. 43; Pape v. Wright, 116 Ind. 502; Keyes v. State; 122 Ind. 527; Brown v. Luehrs, 1 Ill. App. 74; Blackburns. Mann, 85 Ill. 222; State v. Lanier, 79 N. C. 622; Keators. People, 32 Mich. 484; Watkins v. State, 82 Ga. 231, 8 S. E. 875; Holliday v. Cohen, 34 Ark. 707; Kelly s. State, 61 Ala. 19; Commonwealth v. Billings, 97 Mass. 405.
The question on character, as to the exclusion of which appellant complains, was clearly directed, not to developing the character of Gemmill, the witness attacked, but was really an assault upon that of relatrix. It was properly ruled out.
When time is given beyond the term to file a bill, of exceptions, this fact must appear from the record by order-book entry, and not by statement in the bill of exceptions. Benson v. Baldwin, 108 Ind. 106; Engleman v. Arnold, 118 Ind. 81; DePauw University v.
Our conclusion is that no just cause for reversal exists.
Judgment affirmed.
Lotz, J., did not participate.