Fitch v. Powers

5 Citing cases

  1. Commonwealth v. Kennedy

    389 Mass. 308 (Mass. 1983)   Cited 7 times
    In Kennedy, the form read in part "Do you wish to take the test, breath, blood or urine" and defendant was asked to circle one and check yes or no.

    The weight of authority in this country favors admitting evidence that a putative father offered to pay for or to arrange for an abortion. See Swindle v. State, 21 Ala. App. 462, 463 (1926); Gatzemeyer v. Peterson, 68 Neb. 832, 835 (1903); State ex rel. Fitch v. Powers, 75 S.D. 209, 212 (1954). Cf. Frazier v. McFerren, 55 Tenn. App. 431, 439 (1964) (defendant purchased medicine intended to cause a miscarriage).

  2. Olesen v. Snyder

    277 N.W.2d 729 (S.D. 1979)   Cited 27 times
    Affirming a $1,000 award of terms when, after weighing the inconvenience and actual expenses resulting from the continuance, the Court determined it was a reasonable award

    Behseleck v. Andrus, 1932, 60 S.D. 204, 244 N.W. 268. Upon a review of the transcript, we cannot say that the circuit court abused its discretion in refusing to grant the motion for judgment notwithstanding the verdict or for new trial. Aschoff v. Mobil Oil Corp., 1977, S.D., 261 N.W.2d 120; State v. Powers, 1954, 75 S.D. 209, 62 N.W.2d 764; Greve v. Bisson, 1943, 69 S.D. 208, 8 N.W.2d 859; Voegeli v. Schultz, 1940, 67 S.D. 538, 295 N.W. 493. The judgment of the circuit court based upon the jury verdict is affirmed.

  3. Dorsey v. English

    390 A.2d 1133 (Md. 1978)   Cited 13 times

    J. Wigmore, Evidence, § 166, at 627 (3rd ed. 1940). See Flores v. State, 72 Fla. 302, 73 So. 234 (1916); Hall v. Centolanza, 28 N.J. Super. 391, 101 A.2d 44 (1953); State v. Powers, 75 S.D. 209, 62 N.W.2d 764 (1954); State v. Anderson, 63 Utah 171, 224 P. 442 (1924); Lohsen v. Lawson, 106 Vt. 481, 174 A. 861 (1934). These states give the trial judge discretion in making a preliminary determination based on two factors, age and specificity, in order to limit the exhibition of children to those who are sufficiently mature so that a comparison of the child and an adult will be reliable.

  4. Glascock v. Anderson

    83 N.M. 725 (N.M. 1972)   Cited 4 times
    In Glascock v Anderson, 83 N.M. 725; 497 P.2d 727 (1972), the child was permitted to be exhibited to the jury so long as it was of sufficient age to possess settled features, and so long as the showing was made to point out the specific traits which resemble those of the putative father.

    child and the purported father; and as to whether the evidence concerning resemblance or lack of resemblance — whether the evidence be in the form of observations of the child and the alleged father by the trier of the facts, or testimony as to resemblances or differences between them — must be confined to individual features, or specific traits less than an individual feature, or whether it may embrace general resemblances, resemblances as to individual features and resemblances as to specific traits less than an individual feature. See Flores v. State, 72 Fla. 302, 73 So. 234 (1916); Almeida v. Correa, 51 Haw. 594, 465 P.2d 564 (1970); In re Stone's Estate, 77 Idaho 63, 286 P.2d 329 (1955); Merritt v. Leuck, 231 Iowa 777, 2 N.W.2d 49 (1942); Green v. Commonwealth ex rel. Helms, 297 Ky. 675, 180 S.W.2d 865 (1944); Clark v. Bradstreet, 80 Me. 454, 15 A. 56 (1888); Roberts v. State, 205 Okla. 632, 240 P.2d 104 (1951); Boston v. State ex rel. Mayberry, 182 Okla. 181, 77 P.2d 13 (1938); State ex rel. Fitch v. Powers, 75 S.D. 209, 62 N.W.2d 764 (1954); Cook v. State, 172 Tenn. 42, 109 S.W.2d 98 (1937); State v. Anderson, 63 Utah 171, 224 P. 442, 40 A.L.R. 94 (1924); Beattie v. Traynor, 114 Vt. 495, 49 A.2d 200 (1946); State v. Forbes, 108 Vt. 361, 187 A. 422 (1936); Hanawalt v. State, 64 Wis. 84, 24 N.W. 489 (1885); State v. Cabrera, 13 Ariz. App. 527, 478 P.2d 142 (1970); Berry v. Chaplin, 74 Cal.App.2d 652, 169 P.2d 442 (1946); Morris v. Stanford, 58 Ga. App. 726, 199 S.E. 773 (1938); Hall v. Centolanza, 28 N.J. Super. 391, 101 A.2d 44 (App.Div. 1953); Yerian v. Brinker, 35 N.E.2d 878 (Ohio App. 1941); 1 J. Wigmore, Evidence, § 166 (3d Ed. 1940). By his first and second points relied upon for reversal, defendant urges upon us the adoption of (1) a rule prohibiting the presentation of a child before the trier of the facts in all paternity cases, except perhaps when questions of race or color are involved [See generally to this effect Almeida v. Correa, supra; Cook v. State, supra; Hanawalt v. State, supra; In re Wendel's Estat

  5. Vander Werf v. Anderson

    195 N.W.2d 145 (S.D. 1972)   Cited 2 times

    Mark was two years and eight months old at the time. The propriety of exhibiting a child to a jury as evidence of paternity was approved in State ex rel. Fitch v. Powers, 75 S.D. 209, 62 N.W.2d 764. The court adopted the Wigmore Rule which "leaves to the trial judge a preliminary determination of the question as to whether or not the child is sufficiently mature to have developed fixed physical features and then permits, by the display of the child, a comparison of specific traits." At the time of trial defendant Anderson was 38 years of age and had married for the second time. He lived in Sioux Falls and worked for the K R Company in Canton.