3 Conn. Cir. Ct. 449 | Conn. App. Ct. | 1965
In this action, brought under General Statutes § 52-435, the plaintiff offered to prove and claimed to have proved that a child was born to her on April 20, 1962, and that the defendant was the father of that child. The defendant offered no evidence to refute or explain the evidence offered by the plaintiff. The defendant moved to set aside the verdict because of an asserted error in the court’s charge to the jury. Although the assignment of errors sets out six separate claims, all of them are
We shall first consider that assignment which, in part, claims error in the denial of the motion to set aside the verdict because it was against the evidence. An examination of the evidence discloses the following : The plaintiff testified that she had sexual relations with the defendant on three different occasions in July, 1961; that she became aware of her pregnancy the following August; that shortly thereafter she informed her mother, sister and brother of her condition and named the defendant as the father of the expected child; that in September she told the defendant about it, and he then said he could not marry her as he had promised during their periods of intimacy; that the child was born on April 20, 1962, after a normal period of gestation; and that during the time she was intimate with the defendant and when conception would most likely have
The court’s instructions to the jury to which exceptions were taken were as follows: “You should bear in mind that the burden is put upon the plaintiff to prove her case by a fair preponderance of the evidence. By that is meant such weighing of it in your own minds as may incline for or against the proposition which is advanced. In general in a civil action, and this is a civil action, the party who asserts a proposition has the burden of proving it and that is what we call the burden of proof. The burden of proof means that the evidence in support of the allegations of the complaint as are in controversy must overbalance or be weightier than the evidence on the other side; where there is evidence on the other side, of course. Thus, if the evidence in the case is evenly balanced, the burden of proof would not have been met. Now in this type of case we have a statute, which provides that if the woman complainant shall continue constant in her accusation, it shall be evidence that such accused person is the father of such child. It is not necessary for the jury to find, in order to render a verdict for a plaintiff, that she had been constant in her declara
The charge as given was correct. As the court observed in its memorandum of decision denying the defendant’s motion to set aside the verdict, “the portion complained of appears verbatim in the case of Mosher v. Bennett, 108 Conn. 671, 674. Inasmuch as this was a decision of our Supreme Court of Errors, it is binding upon this court. The highest tribunal of this state ‘has a supreme and final jurisdiction in determining in the last resort the principles of law in the trial of causes.’ See Winnick v. Reilly, 100 Conn. 291, 297.”
In his assignment of errors, the defendant asks us to ignore the numerous cases decided by our Supreme Court of Errors which are contrary to the claims he raises. No lengthy repetition of the rules announced in these cases is needed, and we shall merely mention them briefly and point to the cases where they are found.
From our examination of the court’s charge to which exceptions were taken, we find nothing which would render the charge erroneous and in conflict with the rules of law laid down in the foregoing cases. There is, therefore, no merit in the first five assignments of error. We may also add that the first, third and fourth assignments are inaccurately stated and are not a correct recital of the substance of the court’s charge. The defendant makes the claim that the court’s instructions were limited to a charge that the constancy of accusation of the defendant by the plaintiff was evidence of the defendant’s paternity, thus establishing a prima facie case and placing upon the defendant the burden of proving his innocence. The charge, quoted above, defined the burden of proof resting on the plaintiff, referred to prior and constant accusations as being corroborative evidence, only, of the plaintiff’s testimony in court, and made plain that if upon all the evidence, not merely that of corroboration, a prima facie case was made out, the burden of refutation rested on the defendant as the putative father. We have examined the entire charge and come to the conclusion that the excerpt quoted in the finding, even if erroneous, was harmless when read within the context of the entire charge, and correctly instructed the jury on the law applicable to the facts before them. The charge was correct on all the essential aspects of the case, including the failure of
In view of the foregoing opinion, we do not consider it incumbent on us to review the final assignment of error, attacking the constitutionality of § 52-436 as being violative of the due process clause of the fourteenth amendment to the federal constitution and as depriving the defendant of due course of law under article first, § 12, of the constitution of Connecticut.
There is no error.
In this opinion Prityn and Levine, Js., concurred.