Dissenting Opinion
Myers, J.In my opinion the Appellate Court correctly decided this case when it reversed the trial court. *192(Nott v. Bender [1963], Ind. App., 194 N. E. 2d 94.) It cites with approval the case of Opp v. Davis (1962), 133 Ind. App. 365, 374, 179 N. E. 2d 298, 302, 180 N. E. 2d 788, and quotes at length from it concerning the “intimate” nature of paternity cases such as this, and which says in substance that a more liberal approach should be taken by a juvenile court in making extended inquiry as to the truth or falsity of the matter asserted and that “such finding should be predicated upon something more than conjecture, chance, or the mere opinion of the mother that the person charged is the father.”
Here, two affidavits were filed after the trial by two men who stated under oath that each had had “personal relations” with the petitioning mothef at about the same time she claimed the defendant-appellant had had sexual relations with her. One affiant stated that he had had three “social engagements” with appellee beginning June 3, 1959, when he had “personal relations” with her; that a wéek later he “again had relations” with her; and in July he again had “personal relations” with her. These affidavits were attached to the motion for new trial# and .it was claimed that the appellant had no knowledge of this until after the jury had rendered its verdict. He asked for a new trial on the basis of newly-discovered evidence. A counter-affidavit was filed by the appellee which denied that she had had “personal or sexual relations” with either of the two affiants although she claimed she knew them and had been out with one of them on different occasions.
The majority opinion herein attempts to distinguish the Opp case in that there were r. no counter-affidavits filed therein, and that the affidavits which were filed contained allegations as to “sexual intercourse,” while in this case the affidavits alleged only “ ‘personal re*193lations’ of others with appellee, whatever that may be.”
We hope we are not devoid of some sophistication in this modern world in which we live. Yet, indeed, it may be considered a pleasure that we do not have to be informed of sexual acts without the use of four-letter words which seem to be the style today in the field of literature and drama. The restrained choice of words used by affiants in these affidavits should not be misinterpreted by the sophisticate. Even the dictionary says that the word “relations” (used as a noun) means: “sexual union (charged with having — with a woman not his wife).” Webster’s Third New International Dictionary, Unabridged, page 1916. In view of the circumstances of this case, I feel certain my fellow Judges were not entirely ignorant of the meaning of the phraseology set forth in these affidavits. Thus, I am in full accord with the Appellate Court opinion that the affidavits put the trial court on notice that there was other evidence to be considered, and it was an abuse of discretion to have overruled the motion for new trial.
Appellant objected to permitting the child of appellee being brought into court. He also objected to Instruction No. 8 which was given by the court and reads as follows:
“INSTRUCTION NO. 8
“In passing upon the question as to whether or not the defendant, Thomas W. Nott, is the father of the child born to Eleanor Jean Bender on March 9, 1960, you should not take into consideration the appearance of the countenance of the child, nor should you draw any conclusion whatsoever from the appearance of the child. In considering and determining this case you should look only to and consider the oral testimony given in this trial.”
*194These objections were overruled. The baby was born March 9, 1960. The trial was held February 7 and 8, 1961. Thus, the child was about eleven months’ old at time of trial. The majority opinion quotes the statute which says that in paternity hearings, the court shall exclude the general public and admit only those persons “directly interested” in the case, including officers of the court. Burns’ Ind. Stat., §3-638, 1946 Replacement. It then states that:
“It is difficult to imagine a person more directly interested in the case than the child for whose benefit the action for care, support and maintenance was brought.”
First of all, I think it highly speculative that an eleven-months’ old baby could be “interested” in this trial, or any other trial, for that matter. Comprehension of such infants is usually extremely limited. At that age, I think, babies are interested mostly in nutrition, bodily functions, comfort and love from their mothers and, fathers. Thus, this infant could not. fall within the statute. Citing once again Webster’s Third New International Dictionary, Unabridged,. at page 1178, we find the word “interested” is said to mean: “having curiosity or sympathy aroused”; “having a share or concern in some affair or project”; “liable to be affected or prejudiced”; Concerned, Involved.” These are terms which can only be used in the subjective sense, and they could not apply to an eleven-months’ old baby.
The majority .opinion cites authority for its premise that since a child is an interested party within the statute, there was no error committed in overruling appellant’s motion to exclude him from the court room, I cannot find that the eases cited are in point. None of them have anything to say about permitting the child-to be present in the court room. They merely , rephrase the *195general rule that the mother and child are interested in support and maintenance provisions of statutes pertaining to illegitimate children.
The case of State ex rel. Taylor v. Green Circuit Court (1945), 223 Ind. 562, 63 N. E. 2d 287, was an original action attacking the 1941 Act entitled: “An act concerning children born out of wedlock.” It was held that the Act was not unconstitutional because, as alleged, the title of the Act was not broad enough to cover the subject of the Act.
Brown v. State ex rel. Pavey (1932), 94 Ind. App. 669,182 N. E. 263, concerned a child that was stillborn. Price v. State ex rel. (1918), 67 Ind. App, 1, 118 N. E. 690, involved a void judgment. Lewis v. Hershey (1910), 45 Ind. App. 104, 90 N. E. 332, concerned a claim against an estate by an illegitimate child for money that should have been used for her support and maintenance.
In the second place, the majority opinion upholds the court’s Instruction No. 8 and says that it was “obviously intended to prevent appellant being prejudiced in the minds of the jury by the presence of the child in the court room.” The evidence reveals that the infant was brought into the court room for the voir dire on February 7, 1961, and again for five minutes on February 8, 1961, when he became “fussy” and was taken out by appellee.
It seems absolutely unrealistic to one that a trial court can ask a jury to wipe out from their minds a comparison with features or countenance between an infant and the alleged father thereof after permitting the infant to be brought into the court room and placed directly in front of them. The very nature of the instruction would alert any jury to have some kind of mental reaction as to such comparison and thus create prejudice. I find myself in accord with Judge Carson’s opinion for the Appellate Court wherein he says as *196follows at pages 96 and 96 of 194 N. E. 2d):
“We feel also obligated to comment upon the presence of the child in the courtroom during the trial. While it has been previously held that the presence of the child does not constitute reversible error so long as the trial judge exercises the safeguards outlined by previous decisions of the Supreme Court and Appellate Court of this state, we never the less feel that the ends of justice would be better served if the child were not permitted in the courtroom at any time during the proceedings.”
I would reverse and grant a new trial.