23 Ind. App. 419 | Ind. Ct. App. | 1899
This was an action to establish the patei> nity of the illegitimate child of the relatrix and to provide for its maintenance. The case was tried by a jury and resulted in a verdict finding that appellant was the father of the child. Appellant’s motion for a new trial was overruled, and the court fixed the amount to be paid by appellant for the support of the child at $500, and rendered judgment
The second and third reasons assigned for a new trial are that the verdict is contrary to law, and that it is not sustained by sufficient evidence. Appellant has argued at some length that the evidence is not sufficient to support the verdict and judgment. We have read and carefully considered all the evidence, and we find that there is an abundance of evidence in the record upon which the jury were authorized to find that appellant was the father of the relatrix’s child. In fact, we do not see how they could have reached a different conclusion. It is enough for us to say that there is much legitimate evidence in the record to support the verdict, and while there is some conflict as to the material fact at issue, yet we are not at liberty to weigh the evidence, and hence the judgment must stand unless the record presents some reversible error.
Appellant’s fourth reason for a new trial was,based upon newly discovered evidence and was supported by the affidavit of appellant, and one Bradley, as to what the evidence was. These affidavits stated that Bradley, one of the affiants, would testify, if a new trial should be granted, that he had sexual intercourse with the relatrix about the time when she testified she became pregnant by appellant. There are two reasons why the facts stated in the affidavits were insufficient to warrant the granting of a new trial; (1) the newly discovered evidence was merely mimulative, and (2) due diligence' was not shown why the evidence was not sooner discovered. There was some evidence introduced which, if the jury believed, they could have found that at about the time the relatrix testified she became pregnant she had improper relations with other men. .It is plain that the newly discovered evidence relied upon was purely cumulative, and that it has long been the rule in this jurisdiction, from which
By the fifth to the sixteenth reasons, inclusive, for a new trial, the giving and refusing to give certain instructions are questioned. Appellant has waived, by his failure to discuss them, all except the giving of the fifth instruction on the court’s own motion, and the refusal to give instruction numbered two, tendered by the appellant. "We will consider these in their order. Instruction number five, given by the
Appellant’s last point of discussion is that the court erred in refusing to give instruction number two tendered by him. By this instruction, the jury were told that if it is only by inference that a female can fix the paternity of her offspring, and that she had intercourse with different persons at or about the same time she became pregnant, she thus places it beyond her power to draw any safe conclusion upon the subject; and if they found that the relatrix about the time conception occurred had intercourse with persons' other than the defendant, under circumstances which were adequate to produce pregnancy, and that there was no circumstance by which she could determine in favor of either, their verdict should be for the defendant. If we concede without deciding that this instruction was a correct exposition of the law, it was not error to refuse it, for the reason that it was substantially embraced by instruction number four given by the court. In the latter instruction, the court told the jury that if they should find that about the time the relatrix became pregnant she had sexual intercourse with the defendant and also with a person or persons other than the defendant, and that they were unable to determine from the evidence from which act of intercourse conception resulted, their verdict should be for the defendant. When we consider both of these instructions within the light of .the evidence, we are unable to discover any error in refusing to give the instruction refused. While it was a little broader than the one given, and contained one or more addi
It has long been the rule that it is not reversible error to refuse an instruction when the substance of it has been given in another instruction. Westbrook v. Aultman, etc., Co., 3 Ind. App. 83; Cleveland, etc., R. Co. v. Wynant, 134 Ind. 681; State, ex rel., v. Sutton, 99 Ind. 300; Blizzard v. Applegate, 61 Ind. 368; Jennings v. Howard, 80 Ind. 214; Atkinson v. Dailey, 107 Ind. 117; National Benefit Assn. v. Grauman, 107 Ind. 288; Terry v. Shively, 93 Ind. 413; Louisville, etc., R. Co. v. White, 94 Ind. 257. The court did not err in refusing to give instruction number two, tendered by appellant. We have disposed of all the questions discussed by appellant and do not find any error in the record. Judgment affirmed.