Opinion
No. 29857.
October 10, 1932. Suggestion of Error Overruled November 7, 1932.
BASTARDS.
In bastardy proceeding, verdict finding defendant was father of child held sufficiently supported by evidence, notwithstanding mother's previous inconsistent declarations and admissions.
APPEAL from circuit court of Winston county. HON. JOHN F. ALLEN, Judge.
McKeigney Latham, of Eupora, and E.M. Livingston, of Louisville, for appellant.
Appellee insisted on the witness stand that the defendant is the father of her child. This judicial statement of hers is many times contradicted by her extra judicial admissions that one Howard Robson was the father of her child. She is so many times contradicted by the words of her own mouth as to the paternity of her baby that her sworn statement is not entitled to any weight. The record speaks against her.
Her change of attitude — her accusation against Phillips after having so many times laid the paternity of her baby to Robson is conclusive of her unreliability — of her falsehood.
Even this young woman's mother admitted on the witness stand that her daughter had told her that Mr. Robson was the father of the baby.
The appellant testified as a witness in his own behalf, and denied that he had ever had sexual intercourse with appellee. His testimony that he did not have sexual intercourse with her is positive, and is not clouded by contradictory statements. His testimony stands unimpeached, while her testimony as to the paternity of her child is many times impeached by her own admissions.
Appellee's position for six months preceding the filing of her complaint against appellant is in irreconcilable conflict with the position she took in bringing the suit. Her testimony stands uncorroborated. That she many times laid the paternity of her child to Howard Robson is attested by the testimony of many witnesses who could not have had the slightest motive to falsify. She is overwhelmed by the proof, and the verdict is contrary to the evidence, and ought to be set aside.
This court has refused to let a conviction stand on the testimony of a witness who made conflicting statements on the witness stand, the defendant denying the act charged.
Cooper v. State, 130 Miss. 288, 94 So. 161.
J.E. Cunningham, of Booneville, for appellee.
The appellants complain that the court would not grant a peremptory instruction, is a complaint which can only be explained in assuming that they object to having questions of controverted facts submitted to juries for their determination.
One could hardly understand how a question of fact could be more controverted than the question of whether or not Brown Phillips is the father of this bastard child. This young woman testified that he was its father, and Brown Phillips testified that he was not the father of the child. She admitted very frankly that she had made statements that Brown Phillips was not the father of the child, but she explained that by showing that Brown Phillips himself induced her to make these statements by holding out promises of support to her in her sickness, and maintenance to her child, all of which he ignored, and left her wholly abandoned after she emerged from a happy girlhood, occupying a prominent position as an instructor, to that of the fearful ordeal of becoming the mother of his bastard child.
This is an appeal from a judgment of the circuit court in a statutory bastardy proceeding. There are ten assignments of error, all of which have been carefully examined as well as the record of the testimony, from which examination we are of the opinion that no reversible error was committed by the trial court, and that the verdict is sufficiently supported by the evidence.
The ground of error most strongly relied on by appellant, and which in our opinion is the only one which calls for any comment by the court, is based upon the undisputed fact that for a period of five months, beginning from the day the child was born, the mother constantly, persistently, and invariably accused another person than appellant, and that this other person was one particular person definitely and invariably named. So definite and assertive were her said declarations that within the week of the birth of the child the mother sent a telegram to said other person announcing the birth and requesting an immediate visit from him, and the testimony shows that the said person then being accused as the father did in response to said telegram visit the mother in the hospital.
It is contended by appellant that in view of the said declarations and admissions by the mother and of the circumstances of the persistency therein for such a considerable period of time — and in fact until only a few days before these proceedings were instituted — appellant should have been granted the peremptory instruction requested by him, or, if mistaken in this, that the verdict should have been set aside as being contrary to the evidence and a new trial should have been awarded, the proper motion therefor having been made.
We cannot agree to this contention. However strange such conduct may appear to the casual observer, nevertheless it is the opinion of many trial judges, based upon long experience, that more often than otherwise the wrong man is at first accused in cases of this kind, and certain it is that this so often happens as to preclude a peremptory instruction or a new trial in a given case because of said inconsistent accusations. The case may be made out in spite of the inconsistent accusations if the testimony for the plaintiff be of sufficient countervailing strength; and as we have already said, we think the evidence in support of the verdict is sufficient in this case.
Affirmed.