Askren v. State ex rel. Fox

51 Ind. 592

• Court: Indiana Supreme Court
• Decided: November 15, 1875
• Status: Published

Opinion

Pettit, J.

This was a prosecution, or suit for bastardy, ' by the appellee against the appellant, before a justice of the peace, who, after hearing the case, rendered this judgment:

“ It is adjudged by me that the defendant is not guilty of the charge, as set out in the affidavit of the plaintiff. The defendant, Frank Askren, was therefore discharged by me from custody.”

The first question raised in the case is, that this is not a valid judgment, because there is no finding of not guilty preceding the judgment, and therefore an appeal cannot be sustained. ¥e hold otherwise. There was a judgment of not guilty, and from that judgment an appeal may be taken. The State, ex rel. Work, v. Brown, 44 Ind. 329, and authorities cited; Glenn v. The State, ex rel. Clore, 46 Ind. 368; Griffith v. The State, 36 Ind. 406.

The counsel of the appellant ask us to review and overrule the numerous decisions of this court as to whether an appeal lies in a bastardy case, as the statute on that subject does not provide for an appeal. This we refuse to do, holding, as we do, that the cases above cited fully warrant an appeal in such a case.

The only remaining question is as to the evidence. We have carefully read and considered it. If the evidence of the mother of the bastard child is true, then the appellant is the father of it. If the evidence of the appellant and other witnesses is true, then the appellant is not the father of the child.

The court and jury below not only heard the witnesses, but saw them in court, and met them face to face, and were, therefore, able to judge of their honesty, honor" and character better than we are, who can only see the evidence as written in the record.

We cannot, under many rulings of this court, reverse the judgment, though the appellant may have been wronged by false swearing.

The judgment is affirmed, at the costs of the appellant.