287 P. 336 | Cal. | 1930
Lead Opinion
This appeal is from a judgment in favor of the plaintiff and respondent rendered and entered after a jury had returned a verdict against the defendant in an *319 action commenced by the plaintiff to compel the defendant to support her illegitimate son, of whom she alleged, and according to the judgment established, the defendant was the father. During the trial of the cause it was sufficiently shown that the child of the plaintiff had been born in the due course of gestation in the month of June, 1924. The plaintiff testified, and the jury apparently accepted her statement, that the act or acts of illicit intercourse between herself and the defendant occurred in Los Angeles during the last week of September, 1923, and that as a result thereof the child had been conceived. The defendant did not very seriously or successfully controvert the plaintiff's evidence as to his intercourse with her at said time, but rested his defense chiefly upon the ground that the plaintiff had been similarly intimate with other men at or sufficiently near the time of her intercourse with him as to render it possible for the jury to draw the inference that another than the defendant was the father of the child. In the course of this attempted proof the defendant offered evidence to the effect that during the latter part of September, 1923, and while the plaintiff was in the city of Los Angeles there was also living in that city a man named Raiche, whom the plaintiff had previously known in the city of Sacramento, and whom she met upon several occasions during the period of her stay in Los Angeles, and with whom she was apparently upon friendly terms. Having made this showing the defendant offered proof that during the month of April, 1922, and while she was living in Sacramento the plaintiff was the mistress of Raiche and lived for a time during that year in that illicit relationship with him. The basis upon which the defendant made the latter proffer of evidence was not that such former illicit intercourse, admittedly beyond the possible period of gestation, was directly admissible for the purpose of showing another paternity of the child, but that such evidence was admissible for the purpose of showing that the former relationship between the plaintiff and Raiche during 1922, coupled with the fact that the plaintiff and Raiche remained friendly up to and including the month of September, 1923, and were shown to have met each other in the city of Los Angeles and to have been in company there upon two or more occasions during the very period when the plaintiff was maintaining *320 illicit sexual relationship with the defendant, would be sufficient to entitle the jury to draw the inference that the past intercourse between herself and Raiche had been there resumed, and that the latter and not the defendant was the father of the child. The trial court, however, took the position that the defendant had not so far succeeded in showing such opportunity for the plaintiff and Raiche to resume their past illicit relation while in Los Angeles at said time as would suffice to open the door for admission of such evidence, and the trial court consistently and repeatedly refused to permit the defendant to introduce the same. It is this refusal of the trial court which the defendant assigns as prejudicial error upon this appeal.
[1] After a careful examination of the entire record we are of the opinion that the trial court was correct in its refusal to permit the defendant to make proof of the plaintiff's illicit relationship and intercourse with Raiche as of a time at least one year prior to the period within which the plaintiff's child must have been begotten. [2] That such evidence would not be directly admissible in such an action as this was fully established by this court in Estate of Gird,
This being the only question involved in the present appeal, it follows that the judgment of the trial court should be and the same is hereby affirmed.
Curtis, J., Seawell, J., Shenk, J., and Waste, C.J., concurred.
Dissenting Opinion
I dissent.
The following opinion by Mr. Justice Sturtevant of the District Court of Appeal sets forth my views on this case in better form than I could, and I adopt it as the basis of my dissent.
"The plaintiff commenced an action against the defendant to compel him to support her illegitimate son and alleged that the defendant was the father. He appeared and answered and a trial was had before the court sitting with a jury. The jury returned a verdict against the defendant and from a judgment entered thereon the defendant has appealed under section 953a of the Code of Civil Procedure.
"The defendant claims the trial court should have allowed him to introduce, for a limited purpose, evidence of previous acts of sexual intercourse with other men. The plaintiff replies that he was not denied that right.
"That in this class of cases the defendant will be allowed to prove that at about the date of the conception of the child *322
the plaintiff had sexual intercourse with other men is admitted by both parties. (Kelly v. State,
"The plaintiff contends that the ruling was correct because the defendant had not shown that during their association in Los Angeles the plaintiff and Raiche were seen in any compromising position. That was not necessary. If the defendant could have shown an act of sexual intercourse between the plaintiff and Raiche at Los Angeles in September, 1923, such act, both parties admit, would have been admissible and it would be wholly unnecessary for us to *324
conduct this specific inquiry regarding acts committed at Sacramento in 1922. An association together in Los Angeles in September, 1923, was admitted. Moreover, the uncontradicted evidence was that at that time the two were not restrained by family ties or physical obstacles, and that they were strangers in the large city of Los Angeles and free to claim that they were man and wife and were free to be by themselves and indulge their passions. Therefore, they had `an opportunity' within the meaning of the rule. In the following cases the evidence of `opportunity' consisted of various combinations of facts which were held to constitute a sufficient foundation to introduce evidence of other acts as showing or tending to show such acts also took place about the date of conception. In State v. Woodworth, 65 Iowa, 141 [21 N.W. 490], it was shown that the pair resided in the same house. In Walker v. State,
"There is yet another angle from which we may view the specific question before us. It is settled law that circumstantial evidence of acts of sexual intercourse with other men at about the date the child was begotten is admissible. (Estate of Gird,
To my mind, therefore, the judgment should be reversed and the action remanded for a new trial.