Handley v. People

Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision. 1. Bastards, § 33*—when question of paternity for jury. In an information in bastardy, where the evidence is conflicting, the question whether defendant is the father of the child is a question for the determination of the jury. 2. Bastards, § 22*—when specific date not controlling as to time of conception. In an information in bastardy, where the child alleged to have been begotten by defendant was born on October 17, 1913, and where prosecutrix testified that defendant had intercourse with her on a date in December, 1912, and on January 12, 1913, and February 20, 1913, the date of January 12, 1913, is not absolutely controlling as to the date when the child was begotten, since a pregnancy due to intercourse had between defendant and prosecutrix in December, 1912, may have been abnormally protracted. 3. Words and phrases—duration of pregnancy. The duration of the pregnancy of a human female may be stated to be from 260 to 308 days after coition, and the usual or average period to be 276 days, but such duration may exceed its nominal limit, and the limit of such excess cannot be accurately known in the present state of physiological science. 4. Bastards, § 23*—credibility of witnesses. In an information in bastardy, where the testimony of defendant and of prosecutrix is conflicting, it is frequently difficult to determine which witness tells the truth, since the desire of the mother to secure a parent for her child and the desire of defendant to avoid the consequences of his conduct are incentives for concealing the facts. 5. Bastards, § 22*—when date of alibi not conclusive as to date when child begotten. In an information in bastardy where prosecutrix testifies that defendant had intercourse with her on several named dates, which defendant denies, and offers evidence tending to prove an alibi on one of the dates named, but fails to show where he was on the other dates, if not with prosecutrix, the date as to which defendant proves an alibi will not be deemed controlling as to the date when the child was begotten if it is possible that defendant might have begotten the child on either of the other dates named by prosecutrix as those on which defendant had intercourse with her. 6. Bastards, § 22*—when evidence sufficient to sustain finding as to paternity of child. In an information in bastardy, where prosecutrix testifies that defendant had intercourse with her at a date when defendant might have begotten the child, a verdict finding that defendant was the father of the child held sustained by the evidence. 7. Bastards, § 34*—when instruction as to immateriality of dates when intercourse took place proper. In an information in bastardy, an instruction, in substance, that if defendant was by a preponderance of the evidence found to be the father of the child, the dates when intercourse took place between defendant and prosecutrix were immaterial, even though prosecutrix was mistaken as to the particular date testified to as that on which such intercourse took place, held not erroneous under the evidence, it appearing that prosecutrix testified to three dates on which defendant had intercourse with her. 8. Bastards, § 34*—when instruction to find for defendant not erroneous. In an information in bastardy, where defendant requested an instruction that if plaintiff had not sustained the charge that defendant was the father of the child, “or if on this point the preponderance of the evidence is that he is not such father or if you find the evidence equally balanced” then the jury must find for defendant, an objection to the instruction as modified by striking out the quoted words, held not well taken, it appearing that the instruction as given told the jury that they could find defendant to be such father only where such finding was supported by a preponderance of the evidence. 9. Bastards, § 34*—when instruction properly modified by striking out reference to date when intercourse took place. In an information in bastardy, an objection to the modification by the trial court of a requested instruction by striking out the words “on the 12th day of January or at any other time,” held not well taken, such words being misleading, where the instruction as given told the jury that if defendant did not have sexual intercourse with prosecutrix during the period wherein she became pregnant defendant could not be found to be such father of the child, it being immaterial at what date the child was begotten if defendant be found to be the father, and it being therefore improper to call attention to the date when any intercourse took place unless a date when It was impossible that defendant could have begotten the child. 10. Appeal and error, § 1561*—when refusal of proper instructions not reversible error. In an information in bastardy, instructions examined and held not reversible error, although objections thereto were well taken, it appearing that the jury had been fully instructed that all the facts and circumstances in evidence should be taken into consideration in arriving at a verdict.