Smith v. Jackson

Hammond, J., delivered the opinion of the Court. This appeal is from an order of Judge Cullen in a bastardy proceeding brought and decided under the provisions of Code (1964 Supp.), Art. 16, Sec. 66A, et seq., finding the appellant, Smith, to be the father of a child born out of wedlock, and directing payment of $15.00 bi-weekly to the mother for the support of the child, and a counsel fee and costs. The appellant challenges the sufficiency of the evidence and the refusal of Judge Cullen to admit a report of a laboratory test when the maker of the test was not present, and also argues that the opinion of a doctor that the appellant was “relatively infertile” required a finding that he was not the father of the child, despite other evidence that he was. All of these contentions must be rejected.

The mother, Carolyn Jackson, testified as follows: That on July 18, 1961, when she had just turned eighteen, her girl friend got married to Duke Parker and after the wedding Parker introduced Carolyn to the appellant Smith, who was a policeman walking his beat on the four p.m. to midnight shift, and it was arranged that the Parkers and Carolyn would pick up Smith at ¹⁹⁷ his home after he had changed to civilian clothes about midnight and “go out on the town”. The four went to several night clubs, ending at the Club Casino, where they stayed until it closed. Carolyn had drinks of alcoholic beverages. When they left the Club Casino, the Parkers drove Carolyn and Smith to Smith’s apartment, where she had left her sweater.

The Parkers drove off without leaving their car, and Carolyn and Smith went in and she spent the night and had sexual intercourse with Smith. She and Smith had intercourse on several occasions thereafter. In September the doctor told Carolyn she was pregnant and almost immediately she telephoned Smith, who came to her mother’s house where she lived and, when assured that Carolyn was certain that the baby was his, said he would help her with the baby. Carolyn said Smith mailed her a money order for fifteen dollars every two weeks for a time before the baby was born and, before the event, gave her forty dollars towards the eighty-dollar cost of having the child at the Provident Hospital.

She saved the envelopes in which the money had been sent and offered one in evidence. After the baby, a girl, was born on March 31, 1962, Smith brought the child a bassinet, some clothes, and from time to time baby food and milk. Mrs. Parker corroborated the fact that Smith and Carolyn went into Smith’s apartment together early in the morning of July 19, 1961, as the Parkers drove off. Carolyn’s mother testified to Smith’s acceptance of Carolyn’s assurance that he was the baby’s father, to his giving her forty dollars for the accouchement and to his bringing the bassinet, clothes and food for the baby.

Smith testified that he had driven Carolyn straight home from his home, without having gone in, when the Parkers left them in the early hours of July 19, that the few hours of that evening was the only occasion he had seen her or talked to her until after the birth of the baby, and that he had never at any time had relations with her and had never given her any money. He did admit that the envelope introduced into' evidence as bearing money from him before the child’s birth bore his return address and was directed to Carolyn in his handwriting, and also admitted he had taken milk and food to the baby. His explanations of why he wrote and as to furnishing supplies for ¹⁹⁸ the child certainly could have been found evasive,