Witters v. State ex rel. Madry

26 Ind. 192

• Court: Indiana Supreme Court
• Decided: May 15, 1866
• Status: Published

Opinion

Ray, J.

Proceedings to secure the support of a bastard child. Trial, finding and judgment against the appellant. Motion for a new trial on the ground of newly discovered evidence, supported by affidavits. There were two acts of carnal intercourse by the relatrix disclosed by the affidavits, about the date the intercourse was charged upon the appellant. There had been no such evidence introduced before the jury, and the motion is not therefore based upon cumulative evidence. Its non-production upon the trial is also accounted for. Had this evidence been introduced the trial might have restdted otherwise, as it does not appear clear to us upon what evidence, then before them, the jury could have determined the parentage of the child. The motion for a new trial should have been granted.

D. Mace, for appellant. A. J. Roush, for appellee.

The judgment is. reversed, with costs, and the cause remanded.