Wilson v. Hendrix , 125 Miss. 273 ( 1921 )

Sam C. Cooic, P. J.,

delivered the opinion of the court.

The appellee instituted this suit in the circuit court of Lauderdale county. The suit is commonly known as a bastardy suit. The plaintiff was a colored damsel and estimated variously to tip the scales from three hundred to three hundred fifty pounds.

According to the version of the plaintiff the bastard was begotten in a buggy. The learned counsel for the defendant insists that the story of the plaintiff is contrary to human experience and ivas physically impossible. Fortunately, we are not necessarily required to decide between the conflicting theories of learned counsel, neither of whom qualified as experts.

There was evidence Avhich would warrant the conclusion that the prosecutrix was not a chaste woman at the time the bastard was begotten, but, to the contrary, within the period of gestation another man.had such associations with the plaintiff as would warrant the belief that the woman was not chaste, and if the jury believed this evidence, they would be warranted in believing that the plaintiff had not made out such a case as to warrant a verdict in her behalf.

We refrain from going into the salacious details. In this state of the record the court, at the request of the plaintiff, instructed the jury as follows:

“The court charges the jury for plaintiff that Avhile the law places upon her the burden of proving her case by a preponderance of the testimony, this does not mean that she must prove to a moral certainty and beyond every reasonable doubt that Archie Wilson is the father of the child, but if the plaintiff has shown by a preponderance of the testimony that the defendant had intercourse with her at a time which within the course of nature he would or might be the father of her child, then it is your sworn duty to find for the plaintiff in such sum as may be necessary to support said child not to exceed the amount sued for.

“The court charges the jury for the plaintiff that the sole and only question in this case is whether or not the defendant had intercourse with the prosecutrix at or near the proper time which in the course of nature would or might make him the father of her child, and if you so' believe from a preponderance of evidence, then it is your sworn duty to find for the plaintiff in such sum, not to exceed the amount testified to, as to you may seem necessary for the support and maintenance of said bastard child until it shall reach the age of eighteen years.”

These instructions were peremptory instructions for the plaintiff and should not have been given.

Reversed and remanded.