Opinion
No. 1140.
Argued December 10, 1951.
Decided January 11, 1952.
APPEAL FROM MUNICIPAL COURT OF APPEALS, CAYTON, CHIEF JUDGE.
Katherine M. Staley. Washington, D.C., for appellant.
Edward A. Beard, Asst. Corp. Counsel, Washington, D.C., with whom Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellee.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
A jury in Juvenile Court found Richard S. Ellison to be the father of an illegitimate child, and a judgment was entered requiring him to support the child. He has appealed.
As too frequently happens, we find in appellant's brief claims of error which are not supported by the record. For instance the claim is made that the trial court refused to admit a report of a blood test, but there is not a word in the record to indicate that such a report was ever offered or even mentioned. Appellant also says he was refused the right to cross-examine the complainant as to conflicts between her testimony at the trial and testimony she gave at a preliminary hearing. But the statement of evidence does not show any such ruling. In other respects, too, the record does not support statements or contentions in appellant's brief. We feel that we should remind members of the bar that we cannot decide appeals on the basis of facts stated in briefs unless such facts also appear in records brought up from the trial courts.
Another of appellant's contentions has clear support in the record. He offered two letters sent from New York by complainant to defendant in Washington sometime after she discovered her pregnant condition. The trial judge excluded both letters. In one of the letters complainant in plainest words admitted having had sexual intercourse with two named men other than defendant before she left Washington. Both letters contain statements describing complainant's mode of life in New York, some statements by way of self-justification, and other information which was potentially at variance with parts of her testimony at the trial. The letters, if admitted, would have furnished a proper basis for cross-examining the complainant along lines vital to the issue of paternity. We rule that it was error to exclude them.
We are mindful that the letters alone would not have established that complainant's intimacies with the other men happened during the calculated period of conception and that proof of such intimacies should be limited to such period. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905; Dicks v. United States, D.C.Mun.App., 72 A.2d 34, 78 W.L.R. 693; Peters v. District of Columbia, D.C.Mun.App., 84 A.2d 115. In the Thomas case the question was left open, as it was later by us in the Dicks case, as to whether proof of intercourse with other men outside the conception interval would be admissible for the purpose of impeaching the complainant. We recognize the danger of indiscriminately permitting proof of this nature, for the chastity of the complainant is not the real issue, and the question of paternity may be clouded or confused by bringing in proof of other intimacies remote from the time of conception. But we are satisfied that this defendant should have had an opportunity to develop when the admitted intimacies with the two other men took place and to establish if he could that such acts of complainant continued until the child was conceived. State v. Woodworth, 65 Iowa 141, 21 N.W. 490. See also State v. Borie, 79 Iowa 605, 44 N.W. 824; Easdale v. Reynolds, 143 Mass. 126, 9 N.E. 13; Am.Jur., Bastards, section 119; 104 A.L.R. 84, 94, et seq. Defendant was clearly prejudiced because by excluding the letters mentioned he was deprived of the opportunity to develop directly his claim that someone else was responsible for the pregnancy, or indirectly by contradicting the complainant on relevant and important parts of her testimony.
The Government contends that appellant should have made a "proffer" of what the letters would prove. But that is not the rule where the purpose of offered evidence is apparent on its face. King v. Davis, 54 App.D.C. 239, 296 F. 986; Boorstein v. Douglas, D.C.Mun.App., 52 A.2d 492.
Reversed with instructions to award a new trial.