4 Ind. 540 | Ind. | 1853
This information was tried in 1846, and Taylor found guilty as the putative father, and adjudged to pay 150 dollars, in instalments. A motion for a new trial being overruled, the evidence was set out in a bill of exceptions.
The ground chiefly relied on was newly discovered evidence. Taylor produced his own affidavit, and that of the proposed witness. So far he brought himself within the rule.
But he does not show that he had used due diligence to avail himself of the evidence on the trial.
The proposed witness is the brother-in-law of Diana White, with whom she lived during the period, &c. The complaint was made in September, 1845; the trial took place in March, 1846. Taylor had six months to prepare his defence. He lived in the immediate vicinity of the parties. He was not ignorant of the facts within the knowledge of the family where Diana resided, but distrusted his ability to elicit the truth. Hence, he did not closely examine Diana's sister when she was on the stand—did not even inquire whether she had received attentions from other men, and did not venture to examine the brother-in-law at all.
Plaving thus gone to trial unprepared, when witnesses so suggestive of important evidence were within his reach, and yet from considerations of prudence were not
Nor is the newly discovered evidence of Doctor Joslin, (the brother-in-law), as set out in his affidavit, of a character to favor the relaxation of the rule.
It is chiefly impeaching. Diana had answered in chief that she had had no connection with any other man about the time, &c. Joslin’s evidence, if believed, would tend to show that she had received attentions from two other men, under what the witness considered suspicious circumstances. This would be a feeble impeachment.
The statements of both witnesses might be true. Unless the impeaching evidence is strong, and pointed directly to the merits, so as to raise a violent presumption of its being successful with the jury, the verdict should not be disturbed. Mechanics’ Fire Insurance Company v. Nichols, 1 Harr. 410. Courts do not favor new trials for the purpose of impeachment. McIntire v. Young, 6 Blackf. 496.
The judgment is affirmed, with 10 per cent, damages and costs.
