63 Ind. App. 653 | Ind. Ct. App. | 1917
This is an appeal from a judgment in a bastardy proceeding .instituted before a justice of the peace of St. Joseph county. The justice found that appellant was not the father of the bastard child. There was an appeal to the circuit court of said county, where the case was tried by a jury before the Hon. T. ~W. Slick, who, on account of the “serious illness” of the regular judge of
The jury found that appellant was the father of the child, and judgment was rendered ordering appellant to pay to the relatrix $500 for the education and maintenance of said child. Appellant’s motion for a new trial was overruled. From said judgment appellant appeals and assigns the following alleged errors: “1. The court erred in overruling appellant’s motion for a new trial. 2. The judgment appealed from is not fairly supported by the evidence. 3. The judgment appealed from is clearly against the weight of the évidence. 4. The court erred in refusing to sign; appellant’s bill of exceptions No. 2.”
Under his first assigned error, appellant first urges that the verdict of .the jury is not sustained by sufficient evidence, and insists that, where it appears from the record that substantial justice has not been done, this court should and will disregard a mere scintilla of evidence, citing McClellan v. State (1913), 54 Ind. App. 144, 101 N. E. 387. The case cited, while recognizing the rule contended for by appellant, holds, in effect, that it has.no application in a case where, like the one under consideration, the relatrix herself testifies to all the facts necessary to justify the conclusion reached by the jury.
Appellant denied ever having had intercourse with relatrix, and denied the admissions testified to by other witnesses. * Other witnesses contradicted some of the facts testified to by the relatrix. There was opinion evidence to the effect that conception, under the facts and circumstances testified to by relatrix, was unusual, but there was no evidence that it was impossible. It is apparent, we think, that the evidence in appellee’s favor which we have indicated, supra, is more than a scintilla upon each of the facts essential to the verdict of the jury, and that on appeal it must be held as sufficient to warrant the jury in concluding, not only that appellant had intercourse with the relatrix as testified to by her, but that her conception resulted therefrom, and hence that appellant is the father of her bastard child. Michael v. State, ex rel. (1914), 57 Ind. App. 520, 108 N. E. 173; Evans v. State, ex rel. (1905), 165 Ind. 369, 74 N. E. 244, 75 N. E. 651, 2 L. R. A. (N. S.) 619, 6 Ann. Cas. 813.
Such alleged misconduct is not available for a reversal of the judgment below for either of two reasons: (1) No such misconduct is shown by the record. The misconduct relied on is an alleged violation of an order or “direction” of the court. The only action taken by the trial court in reference to such matter, disclosed by the record, was the overruling of appellant’s motion above indicated, and the overruling of a second motion made by appellant, at the conclusion of appellee’s evidence, in which he asked the court to make the
This second bill further states, in substance, that after this direction was given by the court, the relatrix, on several occasions, during the progress of the trial, brought her child in her arms to the table of her counsel in full view of the jury. Such second bill, however, was not signed by the court, and it gets into the record by being incorporated into the third bill, which expressly shows the court’s refusal to sign it, the purpose of the latter bill being an attempt to save and present the exceptions taken to such refusal. It follows that the matters set out in said'second bill are not authenticated by the court’s signature, and hence cannot be considered.
In his motion for new trial, appellant assigned as one of the grounds thereof, misconduct of appellee’s counsel, in that, during the argument of the cause to the jury, such counsel said to- the jury: “There can be no question that a child was conceived about that time because there’s the evidence.” (at the time pointing to the child of relatrix.) The misconduct relied on in this ground of said motion is also set out in said unauthenticated bill of exceptions No. 2, as incorporated in said third bill of exceptions.
It is insisted by appellee, in effect, that the fourth assigned error presents no question because the record shows that such second bill of exceptions was presented to the regular judge
Note. — Reported in 115 N. E. 50. Bastardy proceeding, right to exhibit child to jury, rule, 6 Ann. Cas. 560; 19 Ann. Cas. 536; 5 Cyc 663. Necessity and sufficiency of objection and exception to improper argument of counsel, Ann. Cas. 1916A 551. See under (7) 2 Qyc 1090.