Kintz v. State ex rel. Hunter , 71 Ind. App. 225 ( 1919 )

Batman, C. J.

— This is an action for bastardy, in which it is charged that appellant is the father of the child of the relatrix. No answer was filed. The cause, on reaching the circuit court, was submitted to a jury for trial, resulting in a verdict and judgment against appellant. Prior to the rendition of judgment, appellant filed a motion for a new trial, which was overruled, and has assigned this action of the court as the sole error on which he relies for reversal.

1. Appellee calls our attention to the fact that appellant has attempted to perfect this appeal under the provisions of §679 Burns 1914, §638 R. S. 1881, but has not succeeded by reason of his failure to file the transcript in the office of the clerk of this court within sixty days after filing his appeal bond, as therein' provided.'

2. It is well settled that, where a party has attempted to perfect a term-time appeal, but has omitted some essential requirement in that regard, he will be deemed to have abandoned his appeal in term, but where the transcript has been filed, with an appropriate assignment of errors, it becomes a vacation appeal. Burns v. Trustees, etc. (1903), 31 Ind. App. 640, 68 N. E. 915; Kellogg v. Ridgely (1907), 40 Ind. App. 423, 81 N. E. 1158. In such an appeal notice must be given as required by §681 Burns 1914, §640 R. S. 1881, unless the' same is waived.

3. The filing of a brief by appellee on the merits of the appeal, or a joinder in error, is a waiver of notice. Hazleton v. De Priest (1896), 143 Ind. 368, 42 N. E. 751; Lowe v. Turpie (1897), 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233; Cleveland, etc., R. Co. v. Smith (1912), 177 Ind. 524, 97 N. E. 164. In the instant case appellee waived the service of notice in each of the ways stated, and this court thereby acquired jurisdiction of the appeal. Appellee also calls attention to certain omissions in the index to the transcript. While the index is not as complete as it might be, still the omissions suggested by appellees would not warrant our refusal to consider the merits of the appeal on that account.

4. While appellant has assigned a number of reasons for a new trial in his motion therefor, the only enes presented and relied on for reversal relate to the action of the court in giving instructions Nos. 4 and 5, on the request of appellee, and in refusing to give instructions Nos. 10 and 15, requested by appellant. The court, by said instruction No. 4, informed the jury that, in determining whether or not appellant and the relatrix had sexual intercourse as charged, it might consider their opportunities for so doing, and called attention to certain facts, which, if proved, they might take into consideration in determining whether such opportunity existed.'-;

5. Appellant contends that the question of opportunity for sexual intercourse was not within the issues, and | that-said instruction, when taken in connection with* No. 5, set out below, had the effect of leading the jury to believe that a preponderance of the evidence on the question of whether appellant and the relatrix had opportunity for sexual intercourse would entitle appellee to recover.

4. It has been held proper to instruct the jury on the question of opportunity for sexual intercourse in actions of this kind. Goodwine v. State, ex rel. (1892), 5 Ind. App. 63, 31 N. E. 554. There is no reasonable basis for appellant’s remaining contention, in view of other instructions given on the question of what should be proved before appellee would be entitled to recover. There was no error in giving said instruction.

Instruction No. 5 reads as follows: “A prosecution for bastardy is a civil action in which a preponderance of the evidence is all that is necessary to establish the case against- the defendant.”

6. Appellant contends that this instruction is erroneous for failing to state that all the material allegations of the complaint must be established by such preponderance, and that its effect was to lead the jury to believe that a mere preponderance of the evidence, even though it was not sufficient to establish such material allegations, would entitle appellee to recover. These contentions cannot be sustained.

7. It has long been settled in this state that prosecutions for bastardy are civil actions, and that a preponderance of the evidence is all that is necessary .to establish the affirmative of any issue connected therewith. Walker v. State (1841), 6 Blackf. 1; Harper v. State, ex rel. (1885), 101 Ind. 109; Reynolds v. State, ex rel. (1888), 115 Ind. 521, 17 N. E. 909.

6. While the instruction might have been enlarged so as to obviate the objections urged against it, still the failure to do so did not render its giving error in view of instruction No. 1, given at the request of appellee, and instructions Nos. 2, 3, and 9, given at the request of appellant.

8. Appellant complains of the action of the court in refusing to give instruction No. 10, requested by him. The first part of said instruction was fully covered by instruction No. 12, given on request of appellant. The latter part of said instruction contains the following statement: “In this case the relatrix, by her own testimony, shows immorality and want of chastity, which fact you may consider in determining what weight you should give her testimony.”

9. It is well settled that, while the moral character of a relatrix in a bastardy suit may be proved, as affecting her credibility as a witness, such character must relate to the time she testifies. Meyncke v. State, ex rel. (1879), 68 Ind. 401; Gemmill v. State, ex rel. (1896), 16 Ind. App. 154, 43 N. E. 909.

8. The only testimony of the relatrix which could be said to show her immorality and want of chastity was that relating to her sexual intercourse with appellant during the time and shortly after she claims her child was begotten, which was almost two years prior to the time she testified on the trial. While it would have been proper for the jury to consider such fact, in determining the moral character of the relatrix at the time she testified, as affecting her credibility as a witness, it would not be conclusive as to her character at such time, as the jury might have understood the instruction to imply, had it been given. For this reason the court did not err in refusing to give the instruction.

10. Appellant also complains of the action of the court in refusing to give instruction No. 15, requested by him. It reads as follows: “I have said to you that to entitle the plaintiff to a verdict in this case, the evidence must show by a preponderance thereof that the defendant is the father of the child. This means that the mind of each juror must be convinced of that fact by a preponderance of the evidence and while it is proper for the jurors to discuss the evidence, in the jury room, and try to reconcile the evidence, if there is any conflict, yet it would be' wrong for any juror to consent to a verdict unless his own mind is convinced by a preponderance of the evidence that the defendant is the father of the child.”

It will be observed that this instruction is in the nature of an admonition to the jury with reference to its duty in considering the evidence and arriving at a verdict. It has been held that the giving of instructions of this character must necessarily be largely a matter of discretion with the trial court. 38 Cyc 1762; Pittsburgh, etc., R. Co. v. Collins (1907), 168 Ind. 467, 80 N. E. 415; Pfaffenback v. Lake Shore, etc., R. Co. (1895), 142 Ind. 246, 41 N. E. 530; Birmingham Fire Ins. Co. v. Pulver (1888), 126 Ill. 329, 18 N. E. 804, 9 Am. St. 598. The cases cited by appellant do not indicate the contrary. We conclude that the court did not commit reversible error in refusing to give said instruction.

We find no reversible error in the record. Judgment affirmed.