180 Ky. 642 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
On May 29, 1916, Jeannette Eunyons made affidavit before the clerk of the. Lawrence county court that appellant, A. E. Hatfield, was the father of her bastard child, begotten about May 25 or 26, 1915, and procured a warrant to be issued for his arrest. Upon the trial in the county court, the defendant was adjudged to be the father of the child and ordered to pay to the mother for his support $Í20.00 a year for fourteen years; and from this judgment he appealed to the circuit court, and upon a trial there he was again convicted and a judgment entered against him upon the verdict of the jury requiring him to pay to the mother for the support of the child $84.00 a year, payable quarterly, for thirteen years.
A reversal of that judgment is sought upon the following grounds: First, that the demurrer to the warrant should have been sustained; second, that the court erred in the admission of incompetent evidence; third, that the verdict is flagrantly against the evidence; and fourth, that the trial judge, after submission of the ease, went into the jury room without the knowledge or consent of defendant or his counsel and gave information to the jury about the case.
1. The warrant is objected to upon the ground that it does not state accurately, or at all, the time of the child’s birth. The warrant does state, however, that the child was begotten on or about the 25th or 26th of May, 1915, and the proof shows that the child was born on February 25, 1916, almost exactly nine' months after the date the child was alleged to have been begotten. Appellant was not misled or prejudiced, in any way, by reason of the fact that the time the child was begotten rather
2. The evidence admitted, which it is claimed was incompetent, is of the relationship that existed between the defendant and the complaining witness for some time prior to, and following, the time the child was begotten. It is the contention of appellant that the Commonwealth should have been limited to the period when a child, born February 25, 1916, might have been begotten. We can not agree that such a strict limitation would have been proper. While it is. true that the only issue being tried was whether or not the defendant was the father of the child, and that he could have been the father only if he had intercourse with the complainant within a short time before or after May 25, 1915, but whether or not defendant did have intercourse with the complainant during that period is a fact that may be established, as any other fact, by direct proof and also by circumstantial evidence; and proof that shortly before and shortly after that period he did have intercourse with the mother of the child' are circumstances which corroborate the testimony of the mother and which are of probative value to establish the fact in issue, that the illicit relations existed during the period of possible gestation.
The rule is thus stated in 5 Cyc. 662:
“Evidence of the intimate relations existing between plaintiff and defendant is admissible. So evidence of previous or subsequent intercourse is competent to show the probability of the particular act having occurred, though defendant can only be convicted on proof of the particular act of intercourse charged in the complaint.”
See also 3 R. C. L. 763, and 7 C. J. 992.
It is true that some of the letters introduced and some of the circumstances related were so remote that they were probably immaterial, and therefore incompetent, but, if so, they were not prejudicial.
4. After the verdict had been returned and in support of his motion for a new trial, defendant filed the affidavit of two of his attorneys that, after the submission of the case to the jury, the trial judge went into the jury room and gave information to the jury about the case, in the absence and without the consent of defendant or his counsel. The affidavit does not state however that the defendant did not know of these visits by the judge to the jury room before the verdict was rendered. If, with such knowledge, the defendant took his chances upon the verdict of the jury, he can not thereafter complain of the verdict, as it was his duty, unless he intended to waive objection and take his chances upon the verdict, to have made his objection at the time or as soon thereafter as he received information of the fact. Having failed to allege that he did not have knowledge of this fact before the verdict was returned, he is not entitled to a reversal. Vanceburg Telephone Co. v. Bevis, 148 Ky. 285, 146 S. W. 420, and authorities there cited.
Judgment affirmed.