McMurphey v. Harvey

58 Vt. 549

• Court: Supreme Court of Vermont
• Decided: May 15, 1886
• Status: Published

Opinion

.The opinion of the court was delivered by

Taft, J.

After the evidence was closed and during the argument before the jury, the court permitted the complainant to be recalled and to testify that she was a single woman when the child was begotten. Objection was made that the court had no power at that stage of the trial to open the case for further testimony. Was the action of the court error ? “ The order in which testimony shall be admitted, is one of practice rather than of strict right, and may, in the discretion of the court, be varied to meet the exigencies of a given case without error being predicable thereon, unless it is manifest that the variance has operated to surprise, or in some way work a legal disadvantage to the excepting party.” State v. Magoon, 50 Vt. 333, and cases cited. This salutary rule has always prevailed in this State. This very case is a good illustration of the injustice which would result if a contrary doctrine was held. The complainant had made out her case except the fact she testified to, when recalled, of her being a single woman. The question, no doubt, had escaped the attention of her counsel, or been regarded by him as immaterial; and to have ordered a verdict for the defendant because of the inability of the court to vary a rule of practice and relieve him from the support of a child, whom, at the instigation of the devil, he had brought into being, and his offense to have remained “ unwhipped of justice,” we think, would have shown a serious defect in the jurisprudence of any civilized country.

Judgment affirmed.