90 N.E.2d 849
Nos. 31757 and 31758Supreme Court of Ohio.
Decided February 23, 1950.
New trial — Newly discovered evidence — Section 11576, General Code — Diligence not exercised to produce evidence at trial — Bastardy — Birth certificates stating children’s paternity and mother’s marital status.
APPEALS from the Court of Appeals for Cuyahoga county.
On October 8, 1947, Inell Robinson, as an unmarried woman, filed in the Juvenile Court of Cuyahoga County two complaints in bastardy, one charging Thomas Hightower with being the father of a boy born on August 5, 1941, and the other charging Hightower with being the father of a girl born on December 7, 1942.
On October 24, 1947, at the examination of the complainant under oath, she stated that she was unmarried, that she had been delivered of the two children, one child being begotten in the last part of November 1940 and the other child in March 1942, and that Hightower was the father of the children. The defendant pleaded guilty and the Juvenile Court found him guilty as charged in the complaints and ordered him to pay the court costs and $21.67 twice a month for the current support and maintenance of each child. No stenographic transcript was made of that hearing.
On December 11, 1947, the defendant filed motions
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for new trial on the ground of newly discovered evidence. He asked also for stays of execution and for leave to change his pleas. A hearing was held on the motions, a stenographic transcript was made but not prepared as a bill of exceptions, and the motions were overruled by the Juvenile Court.
Appeals to the Court of Appeals on questions of law and fact were dismissed, the cases were retained on questions of law only and leave was granted to file a bill of exceptions.
There was then filed in the Court of Appeals a bill of exceptions, designated as a narrative statement of proceedings, which was allowed and signed by the judge of the Juvenile Court. These additional facts appear in the narrative statement: The defendant was asked at the preliminary hearing on October 24, 1947, whether he pleaded guilty or not guilty. He was informed by the court that his bond would be $300 cash or $500 property bond, and that he would be required to post the same or be committed to the county jail. Defendant was given the opportunity to go outside the courtroom to secure a bond. He later returned to the courtroom, changed his pleas to guilty and the court ordered him to pay the costs and support money as hereinbefore stated. The defendant’s newly discovered evidence on which he predicated his motions for a new trial was two birth certificates setting forth that Mrs. Robinson at the time of the birth of each child stated to the attending physician that Leo Robinson was the father of her children and that she was a married woman. The court refused to admit in evidence the birth certificates of the two children in question and, as hereinbefore stated, overruled the motions for new trial.
The Court of Appeals affirmed the judgments of the Juvenile Court.
Appeals to this court on a claimed constitutional
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question were dismissed (151 Ohio St. 552, 86 N.E.2d 615) and motions to certify the records were allowed.
Messrs. Parker, Shackelford Dixon, for appellee.
Mr. Wyatt C. Brownlee, for appellant.
BY THE COURT.
When these cases were before this court on motions to certify the records, counsel for Hightower stated the questions were (1) whether children who are born in lawful wedlock are presumed to be legitimate, (2) whether Section 12110, General Code, means a woman who was unmarried at the time the children were conceived and born and not unmarried when the complaint was made and (3) whether it is the duty of the woman who makes the complaint to prove impossibility of access by her husband during the period.
Questions (2) and (3) are again presented on the merits, upon the records filed in this court, after motions to certify were allowed. Question (1), as now presented, is whether children who are conceived and born in lawful wedlock are presumed to be legitimate.
The paternity of the children and the marital status of the complainant were determined by the Juvenile Court in its journal entries of October 24, 1947. The defendant later attempted to controvert paternity and marital status on the ground of newly discovered evidence presented by his motions for new trial filed under Section 11576, General Code.
Unless the Juvenile Court committed error in overruling the motions for new trial and should have admitted the birth certificates in evidence, the records before this court are not sufficient for a determination of the aforestated three questions.
Section 11576, General Code, provides that a new trial shall be granted for “newly discovered evidence,
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material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial.”
(Emphasis added.)
There is nothing in the records of the present cases to show that the defendant exercised due diligence or any diligence to discover and produce the certificates during the preliminary trial at which he changed his pleas from not guilty to guilty.
In Domanski v. Woda, 132 Ohio St. 208, 6 N.E.2d 601, this court held in the syllabus:
“1. New trials on the ground of newly discovered evidence are not favored by the courts.
“2. The granting or refusing of a new trial on the ground of newly discovered evidence rests largely within the sound discretion of the trial court, and when such discretion has not been abused reviewing courts should not interfere.
“3. Newly discovered evidence is other than that which might have been known before the termination of a trial had due diligence been used.”
The judgments of the Court of Appeals, affirming the judgments of the Juvenile Court, are affirmed.
Judgments affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.
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