41 Vt. 80 | Vt. | 1868
The opinion of the court was delivered by
The evidence introduced on the part of the defense,, tending to show sexual intercourse by the plaintiff with others than the defendant, and acts of indecent familiarity with them, tending, as was claimed, to show such intercourse, outside of the time within which, according to the course of nature, the child in. question could have been begotten, was improperly admitted. Evidence of this character is limited to such acts within the time the child could have been begotten. This evidence was not rendered admissible by the inquiries as to such acts having been first. made of the plaintiff on the stand, and her denial of them. The defendant had no right to make such inquiries, and, when made, the plaintiff had her election to answer or not, as she pleased. Her answering without objection does not give the defendant the right to introduce evidence to contradict her answers; not even for the purpose of impeaching or discrediting her testimony. The-
The error is not cured by the direction of the court to the jury in the charge, not to consider it, as it had no tendency to show that the defendant was' not the father of the child. It had already had its influence on the minds of the jury, and it would be extremely improbable, if not impossible, that'the jury could know what their conviction would have been on the material fact, had this evidence not been in the case. This point was decided in Conn. & Pass. R. R. R. Co. v. Baxter, 32 Vt., 805, where the reasons are well assigned. It was proper for the court to give such instructions after they had discovered the error, because it might have some influence in removing the impression created by that evidence, and had the verdict been the other way, the error would have become immaterial. But as the verdict was for the defendant, the error is not cured.
The objection to the defendant’s offer to show by Dr. Whitcomb that the plaintiff applied to him for medicine to procure an abortion, and to show by Mrs. Brown that the plaintiff attempted to procure an abortion and what the plaintiff said ón that subject, ought to have been sustained, and the evidence excluded. And the court erred in charging the jury that it was evidence tending to contradict and discredit the plaintiff and her mother. This was decided in Sweet v. Sherman, 21 Vt., 23. In that case, the defendant 'offered to prove such fact both by inquiring of the plaintiff on cross-examination, and by a physician introduced by the defendant, and it was held that it was properly excluded. In the opinion in that case it is said, that it had no tendency to prove
The indecent question put to the plaintiff by Mr. Flanders and her reply, should have been excluded by the court. The plaintiff would naturally repel such a question in the shortest possible way, and her reply furnishes no just ground of inference .against her.
But it is insisted by the counsel of the defendant, that the evidence of Wilbur N. Thurston as to what transpired at the defendant’s house in February, 1865, was properly admitted. This transaction was not within the time the child could have been begotten, as the child was born March 4, 1866. If actual intercourse with others than the defendant, outside of the time the -child could have been begotten, is inadmissible, clearly indecent familiarity with the witness, outside of that time, must be incompetent. It is claimed that the evidence of this witness tends to prove sexual intercourse between the plaintiff and Carlos Thurston 'on that occasion. The deportment between Carlos Thurston and the plaintiff to which this witness testified, claimed to be suspicious, is that, in the evening, those two left the room where the rest of the company were, and went into the back room, and were gone about ten minutes. Divesting the case of the inadmissible evidence with which it was incumbered, this circumstance can hardly be said to be any evidence of sexual intercourse on that occasion. But if any evidence at all, the presumption must be extremely slight. But in any view of it, not being within the time the child could have been begotten, it was of itself alone incompetent evidence. But it is claimed that this evidence of Carlos Thurston and the plaintiff going into the other room together, is rendered admissible by other evidence in the case. It appears that the plaintiff had testified that she took her bundle of clothes between two and three o’clock in the morning June 2,
It is claimed by the plaintiff’s counsel, that declarations made by the plaintiff after the overseer filed his certificate and took control of the prosecution, were not evidence in chief, but only evidence tending to discredit the testimony of the plaintiff, and that the court erred in charging that such declarations were evidence in chief. It is claimed that, after the town assumed control
The plaintiff also excepted to the introduction of certain evidence to impeach the general character of the plaintiff for truth. It appears by the case .that the plaintiff has not lived in the vicinity of the defendant’s since she left his house • in June, 1865; that the impeaching witnesses introduced by the defendant, mostly reside in the vicinity of the defendant’s ; and many of them stated that they had heard no reports against her character for truth previous to her leaving the defendant’s, but had heard such reports since; and some of them stated they had heard no such reports until a short time previous to the trial. And it further appears that the reports previous to her leaving the defendant’s, were mostly in relation to two or three matters of difficulty and controversy which she had with a schoolmistress and another
Judgment reversed, and new.trial granted.