Riggins v. People ex rel. Carpenter

Mr. Justice Boggs.

This is an appeal from a judgment of the Circuit Court of Mason County finding the appellant to be the father of an illegitimate child of the relatrix. The appellant admits that he had intercourse with the relatrix on two occasions, but he stoutly asseverates that the last of these favors was granted him on the 29th day of June, 1890. The child was not born within a period of gestation beginning with that date. The relatrix testified to two acts of sexual intercourse with the appellant, one in July and the other in August, either of which would be within the gestatory period. This was the question of fact in the case. The evidence bearing upon it ivas conflicting, and there is sufficient in the proof to warrant the conclusion reached by the jury. The judgment must therefore stand unless error is found in the instructions given to the jury.

The only complaint in'this respect is that the court refused upon the application of the appellant to give the following instruction, viz.:

“ The court instructs the jury that the law allows both the mother and the party charged with the paternity of the bastard child, to testify, and they are both competent witnesses, and the oath of one is entitled to as much weight as the other, provided you believe they are equally credible, and it is your province to weigh all the evidence and give such credit to any and all the witnesses sworn in this case .as you believe they are entitled to.”

It is not true that the oath of one witness is entitled to as much weight as that of another, simply because both are deemed credible. One may be corroborated while the other may fail of such support, or the memory or the means of knowledge of one may appear to the jury superior to that of the other. There are so many considerations .affecting the Aveight of the testimony of credible Avitnesses that the court should not assume to control the jury by instructions as to the comparative value of their testimony. The instruction Avas properly refused. There is no reason why Ave should interfere with judgment in this case.

Judgment affirmed,.