State ex rel. McKeever v. Carey

PREston, J.

i. bastabds : evidence: sufficiency. The complaint charges that, on October 29, 1915, defendant had sexual intercourse with relator, and, as a result thereof, she became pregnant, and that, thereafter, and on July 26, 1916, and within the period of gestation, a male child was born to her. Judgment Aras asked to provide a fund,, out of which to support said child. For answer, defendant denied that, on said date, or at any time, he had sexual intercourse with relator; denies that he is the father of the child.

1. Appellant challenges the sufficiency of the evidence to sustain the verdict. In 1912, plaintiff came to Cass County. Iowa, from Illinois, with her unmarried brother, 46 years of age. She kepi house for her brother, on the farm where they were living at the time of the alleged transaction. On the date in question, relator was 36 years of age. Their residence was a quarter of a mile south of defendant’s home, in 1912, defendant’s wife and young boy called on relator and her brother, and relator returned the call. Eelator testifies that thereafter, at the suggestion of Mrs. Carey, she took her washing to Carey’s house, and they did their washing together, because Mrs. Carey had a *1310 washing outfit, and relátor had been doing her washing by hand; that they washed that way for a year and a half or two years, and plaintiff! did some work for Mrs. Carey. She says it was without pay, but that Mrs. Carey gave her presents and things like that at different times, and defendant and relator’s brother exchanged work. Until a few months before the date of the alleged intercourse, the relator’s relations with the Careys seemed to be pleasant. Relator says that she saw that Mrs. Carey didn’t want her, and didn’t call her up on the phone, when she got ready to wash. Plaintiff testifies that, she was a member of the Presbyterian Church, and was active in the work of the Ladies’ Guild, and the Church Club known as the Orphans’ Home Sewing Society; that the Careys went to the Guild. Defendant testifies, “I hain’t got no church.” Relator testifies that Mrs. Carey frequently asked her to the Carey home. At one time, Mrs. Carey being under the care of a physician at Atlantic, relator and her brother stayed at the Carey home for some time, she doing the cooking for the Carey family, which consisted of defendant and his two sons, one a young boy, and the other a man grown. Some time before the alleged intercourse, there was some trouble between plaintiff and Mrs. Carey. Relator testifies that Mrs. Carey accused her of coming to defendant’s home to see her men, which relator emphatically denied, and offered to call the men before Mrs. Carey to prove that she had always been ladylike. She says the matter was dropped, and that they parted on friendly terms, but that she saw Mrs. Carey did not want her to come there. Mrs. Carey testifies, as to this, that she told relator not to come, and says she did not think relator was a nice woman, because of certain things she claims plaintiff said to her. Mrs. Carey testifies that relator told her that she had had sexual intercourse with different men, and with her brother, and that certain ones had attempted to rape her; says Miss *1311 McKee ver told ber she was in a tub, bathing, and her brother came in there, and they had intercourse, and witness said, “I never would tell it if I did;” that she didn't say where it was; that there was no bath tub down there; that she said she was in a tub; that she didn’t say bath tub. She says she told her husband. She says relator told her she was jealous, and that relator said she said she could take Mrs. Carey’s husband from her, and break up her home. These matters are denied by relator. On cross-examination, defendant, when asked what his wife had told him, did not mention the alleged sexual intercourse with others or with her brother. He testifies that his wife told him that the Lunn boy came up there, and talked to her in the house, and that relator got up and went out and got a club and stood him off; that she didn’t say he succeeded; and that one Baker*, a man 60 years of age, came there and. got hold of her and tore her dress nearly off; that, when his wife told him this, he said that, if that was the case, they had better cut them out, “for fear it might affect our reputation.” They met occasionally thereafter, and defendant and the brother exchanged work, to some extent, but not so much as formerly. Plaintiff testifies that defendant always treated her right, until the time in question; that she thought of Mm as a father, amj never thought of him as anything else than Mrs. Carey’s husband; and that she never did anything to encourage Mr. Carey to offend her. She says that, shortly after they moved there, defendant at first called her “Cyclone Bill,” and then shortened it up to just “Bill,” because defendant’s youngest son took her photograph when the wind was blowing, and defendant said that it was a cute picture, and put him in mind of a cyclone, and thereafter called her “Bill.” Relator testifies that, on the morning of October 29th, she got up about 5 or 5:30, and describes what she did; that her *1312 brother left for the day around 8 o’clock; that, after her brother had gone out to hitch up, she saw defendant passing, going south, riding a black stallion; that, after that, she did up her morning work, and was sewing; that, somewhere around 10 or half past 10 that morning, — she could not say exactly, but her best judgment is, about 10:15,— defendant came to the house, and came in the room where she was alone, without knocking; that, ‘ after he came in the room, he had a kind of funny grin on his face, and she doesn’t remember what he said first; that he came around the sewing machine and reached out and took hold of her; that she asked what he meant; that he put his arms around her and took her across the room to the couch and pushed her down on his lap; and, while she was on his lap, with his right hand removed her underclothes, and held her arms down firmly, with his arm around her; that he then laid-her down on the floor, and had sexual intercourse with her. She says she didn’t do anything much by way of resistance, only cry and beg; that she- was too scared and dumbfounded; that he said, “Bill, don't fight me so;” that after-wards he told her there would not be a bit of danger, “didn’t need to be afraid, no one will never knoAV;” that she was still crying and protesting; that, after the intercoui'se, she rolled over on her face and was crying, and he picked her up and set her down on his lap for five or ten minutes; that she was crying too much to know or care what he did or what happened to her; that she asked him if she had ever done anything down at his house to make him think she was that kind of a girl, and he said, “No;” and when she asked him Avhy he treated her that Avay, he said her legs were enough to set any man crazy; that she doesn’t imagine defendant was in there more than 25 or 30 minutes; that she -doesn't knoAV just how long; that she didn’t see him come there; that he Avalked away through the field in a roundabout Avay through the corn field; that he could *1313 have got off the stubble field, without going through the corn; that he did not take the nearest way home; that he could have gone on the road; that she doesn’t know what time it was when he left, but that it was between half-past ten and eleven, somewhere, — she couldn’t say. She says her mind wasn’t on the clock. She fixed the date because it was the day after McFarland’s sale, which was on the 28th. She • says that it is pretty hard to erase it from her mind, and is sure that is the date. She testifies that she hadn’t kept company with men, gone out riding, and attended functions, for a month prior to the 29th; that she did not keep company with any men during the fall of 1915; that she never had intercourse with any other man. She testifies more in detail than we have stated, and says further that, on February 29th, defendant came to their place, to help her brother Henry; that defendant came to the house, and she told him of her condition, and asked him what’ she was going to do; that defendant said, “I am sure I don’t know, — I know damned well what I done;” that he said he didn’t think there was anyone else; that she had seen him before that at a threshers’ supper, but in a crowd, and had no opportunity to speak to him; that after that she saw him at another threshing supper, but only passed •the time of day; that she told her brother of her condition, May 16th; that the child was born at her house. She says the child is the child of defendant. On cross-examination, she testifies that, at one time, it was raining, and the roof was leaking on new wall paper, and that she and defendant went into the attic with pans, to catch the water; that she told Mrs. Carey, of this over the phone, when ■ Mrs. Carey was in-Atlantic, and told her the circumstances; that Mrs, Carey accused her, and said that she and Tom were up in the attic; that she had washed that day at defendant’s; that the last man that had worked for her brother was in August; that she is not mistaken about the date’s being the *1314 29th, because, when a person receives a shock, “they are not likely to forget it;” that defendant never had intercourse with her except that time; that her brother hauled cement blocks that day for Mr. Kirk; that her underclothes were not torn, and that she put them on again, after defendant left.

Henry McKeever, relator’s brother, says that, after breakfast, he went out and hitched up his team; that he saw defendant between 8 and half past 8 that morning, riding a black stallion; that defendant was then 10 rods from the house; that it was a clear day. He fixes the date as the day after the McFarland sale, and, at the sale, Kirk asked him to haul blocks the next day. He says the sale was on October 28th, and that defendant came home with him from the sale; that they walked together; that several of the neighbors hauled blocks that day. He describes their relations with the Careys, exchanging work, visiting, etc., and says he traded horses with him on February 29, 1916. He testifies about Carey’s. going to the house for soap and water that day, when they were doctoring a colt; that, on May 24, 1916, after his sister had told him of her condition, on the 16th, he saw defendant in front of his place; that three other men were present; that witness asked defendant if he hadn’t always used him white, and defendant said, “Yes;” that witness, then asked him, “What made you use Lila the way you did, last October?” He answered that he never said a word against her in his life; and witness said, “It was not what you said, — -it was what you done.” Witness testifies that defendant then said, “I never done anything;” that defendant’s jaws trembled so he could hardly talk, part of the time; that, prior to the fall of 1915, defendant had always been jovial, and defendant would wave at witness from a distance, but, the next spring, defendant did not look towards him, or notice him when they'were close together. Witness Runte *1315 testifies that he lived half a mile south of defendant’s place; was at the sale, October 28th, saw the bills, and saw defendant there; the next day, he went to haul blocks at Atlantic; left home about 8 A. M.; saw defendant, the morning of the 29th; went by witness’s place, before he left home; defendant was going from his home towards Hannah’s, riding a black stallion; was within 15 rods of him; knows defendant well, and knows his horse; is positive he saw him; didn’t know where he was going at the time, but learned afterwards; defendant spoke to witness, and says, “Hello, Stormer.”

“That is my name. 1 live a little over a quarter of a mile from McKeever’s. Was with Henry McKeever, May 21th, in the road in front of defendant’s house. It was at that time that defendant said he hadn’t said anything against Miss McKeever. Defendant acted like he was badly scared.”

Mr. Hannah says he lived,' in October, 1915, half a mile south and 40 or 50 rods east of defendant’s; defendant was at his place with a black stallion; bred a mare for witness; it was near S o’clock; defendant stayed at his place about a quarter of an hour; doesn’t know which way he went when he left. He fixes the time that defendant was at his place on October 29, 1915, because it was the day after McFarland’s sale, and, on the 29th, he hauled cement blocks for Kirk. He is positive about the date.

Mr. Kirk testifies as to several of the neighbors’ hauling cement blocks for him on October 29, 1915'. He fixes the date because he has his bills in his pocket; knows Mr. Hannah ; lived half a mile east from where he lived; saw defendant, the morning of October 29th, at Hannah’s place. He says it was around 8 o’clock; that defendant had his horse with him; that he is acquainted with the horse, a black stallion. He is positive defendant was there with the stallion; *1316 knows of no otber man in that neighborhood who has a black stallion.

Witness Engle testifies to a conversation with defendant with reference to relator, about April, a year before the trial, which would be 1917; that he asked defendant about it, and that defendant at first denied it.

“He said it wasn’t his child at all; he said it was her brother’s. Q. State what he said. A. Well, I believe he said he did have intercourse with her once.”

The witness put it stronger than that at first; but, the way the answer was framed, it was struck out as a conclusion. His testimony was somewhat weakened on cross-examination, and by answers given by him at a former trial. This is the substance of the State’s testimony.

The defendant, testifying as a witness, in addition to what we have before set out, describes the relations between the McKeevers and the Careys. He says he remembers the time Kirk was having cement blocks hauled, — it was October 29th; remembers it on account of the sale, which was on the 28th; was not away from home that morning; did not take the stallion and go away from the place, October 29th; the last mare he bred was Hannah’s; had a black stallion; thinks the last he ever bred was October 13th,— Hannah’s; kept a stud book; could not find it.

“Looked for it last night, so I could get a date. The date I wanted was the date I was over at Hannah’s, the last time. Don’t know what became of the book; it was there when we packed up to move. Q. Did your book show any service of your horse on the 29th.? A. Yes, sir. Q. Whose? A. I take that back; I thought you said the 13th. Q. No, sir, I am speaking of the 29th. A. No, it does not show any service on the 29th; the 13th was the last time. The horse may have been off the premises after the 33th; T would sometimes ride him to the neighbors’.”

He testifies of his doings that morning and forenoon; *1317 did Ms chores; took a wheelbarrow and went to the field for a young calf. He says that, when he got back with the calf:

“I suppose that would be about 8 o’clock; as to how long it took, I am guessing at it. I don’t know how long it took. When I got back with the calf, there was nobody in th¿ yard, — my two sons had gone.”

He says he then went to the house and got a drink of water, then went out to. peeling poles for a hen roost, about 8 o’clock, about 60 feet from the house. Mrs.- Carey and Miss Thompson were about the place, in the house.

“Miss Thompson came down there, when I came with the calf; was peeling poles, when Elliott and Blake came, and that was around 10 o’clock. I could tell you what time it was from noon when they arrived, — a man can tell pretty close. It was a nice, sunshiny day. I guessed at it; I didn’t notice the clock; I couldn’t tell exactly. We talked business. It was right around 10 o’clock when they came,— I am not positive just to the minute. They stayed for dinner. Had an early dinner, about a quarter of 12. I told my wife to have an early dinner for them. We were at dinner half an hour. The men left after dinner. I came to Atlantic.”

Witness denies having intercourse with Miss McKeever on October 29th; denies that he was at her house; says he never had intercourse with her at any time in his life; says the McFarland sale was on October 28th.

“I saw the bills, and Avas at the sale. I know the cement blocks were hauled for Kirk the next day; there is no question about that. Was at McKeever’s in February; had no talk with Miss McKeever, only told her I wanted some warm water, and she said, ‘All right,’ and went to the reservoir and got it.”

Harvey Carey, son of defendant, 29 years old, says:

“The highway past our house runs north and south. We are on the east side of the road. McKeevers lived south. *1318 I hauled blocks the 29th. I think I got to Atlantic about II o’clock. Left home around 8 o’clock. I am judging from the time we usually got up and done the chores and got around, also by the time I got to Atlantic. I got up about 5 or 5:30 that morning; had chores to do. Think we had breakfast about G or 6:30. Met Blake and Elliott on the road between our place and Atlantic, three or four miles from home. I would not be positive it was 10 o’clock; I don’t hardly think it was that late; didn’t look at a watch. I couldn’t say how long it would take to drive the distance I had. .1 would say an hour and a quarter, to drive the team from home to where I met them. Think it would be a little after 9 o’clock when I met them. Couldn’t say positively when we got to Atlantic, — might have been about 11. o’clock. Nine and three-quarters miles from our place to Atlantic. I don’t know that Miss McKeever ever attempted to make love to me.”

Blake says:

“Live in Atlantic. Was at Carey’s the lafter part of October, — can’t say the 29th. Went in Elliott’s car. Met Harvey Carey on the road. Arrived at Carey’s home a little after 10 o’clock; found Carey in the yard peeling poles. Think they had dinner a little early, before 12. Carey did not leave the premises before dinner, after we arrived. Was with him all the time.”

Elliott, a brother of Mrs. Carey’s, testifies about the same as Blake. He says they arrived at defendant’s place about 10 o’clock; “may have been a little before or a little after 10. 'I didn’t look at my watch any time I was thei'e. Don’t know what speed we drove.”

Miss Thompson says she was staying at Carey’s; that she knows Blake and Elliott; that they were there the day the blocks were hauled; that they arrived at Carey’s, “I should judge around 10 o’clock, somewhere at that time;” that she was ironing that morning; that she could see the *1319 men talking at the pole pile; that she got up that morning about daylight.

“We usually got up at that time. Don’t know when we had breakfast, — perhaps half an hour after we got up,— don’t remember the hour exactly, — perhaps longer. Went down and closed the gate when defendant brought the calf up. After the calf trouble, saw Carey after that; couldn’t say just as to the time. Came back to the house and went to ironing. When I looked out the window, soon after that, noticed him peeling poles. Couldn’t say just what time it was. Didn’t miss defendant from the place that morning. The son Harvey left around 8 o’clock. It was early in the morning. I do not fix the time at exactly 8 o’clock, — as near as I can remember, it was around 8.”

She doesn’t think she remembers all she did that morning. She says she usually made up the beds and helped do the morning work, and such things; that defendant started to peel the poles, after taking care of the calf, couldn’t say the time.

“Don’t think it was as late a.s 9 o’clock when he began peeling poles. Don’t know whether he went right away to peeling poles after taking care of the calf or not. Didn’t see him go there, but the first' I ‘noticed, he was peeling poles. Would not say I saw him all the time, but could see him between 8 and 9- o’clock. Saw him several times. Couldn’t say he was not off the premises.”

Mrs. Carey, wife of defendant, testifies, in addition to what has been before set out, to 'their relations with the McKeevers; that she remembers Blake and Elliott’s coming in October; that she thinks it was the 29th of October. She says she would judge it was about 10 o’clock, and tells about her husband’s peeling poles, about the early dinner, and bringing the calf in. She is sure of the date, October 29th, because it was the first day after the sale, and the date the cement blocks were hauled for Kirk. The *1320 highway between her house and McKeever’s was open; no part of it out of sight, except, perhaps, a little, the size of the court room. She says she saw men go to McKeever’s home in October, 1915, when Mr. McKeever was absent, one of them the Congregational preacher; but, on cross-examination, says some of the same parties came to her house. She says she didn’t tell about what Miss McKeever said about her brother on the former trial; says her husband came to the house for a drink probably about half past 9 o’clock.

“I didn’t- examine the time; was doing my housework that morning.” She says there was a grove straight east of the house; that there are no obstructions between Mc-Keever’s and her place; that there are trees along the road; that McKeever’s is on the west side of the road; that they have some trees in front, but the house is in plain sight; that she does not think Mr. Carey was off the place that morning; that she is positive of it; that she didn’t see him every minute.

2. bastards : proof of intercourse. We have set out the testimony somewhat fully, and have given the circumstances of it, because of the claim that the evidence was not sufficient, and for the further reason that it seemed necessary on some points in the case. Some of the witnesses appear to have had some feeling in the matter, particularly Mrs. Carey. It is almost unbelievable that a woman would tell another that she had had sexual intercourse with other men, and with her own brother, unless it should be a very loose woman. There is no particular attack on the character of the complainant, except by Mrs. Carey, and the circumstances of the transaction about which relator complains. It may be that, if Mrs. Carey told her husband the things she says she did, and he was so disposed, he may have thought he could readily have intercourse with relator. It will be noted *1321 that there is but little, if any, dispute as to the day in the month, and that, if the intercourse, took place, as complainant claims, it was on October 29, 1915. There is, however, discrepancy in the testimony as to the time of day that certain things testified to occurred. For instance, the defendant testifies that, after he got back from attending to the calf, he went to the house and got a drink, and wept out and began peeling poles, at about 8 o’clock; while his wife testifies that he came to the house for a drink at about 9:30 o’clock, a discrepancy of an hour and a half. Some of the witnesses guess at the time. None of them attempts to fix- the hour accurately. We have held, in criminal cases for seduction, that the intercourse may be established by the testimony of the'prosecuting witness alone, if the jury believe her, even though denied by the defendant. It would be difficult, and next to impossible, to prove sexual offenses in any other way. Though defendant denies the intercourse, it was a question for the jury to determine.

Under the evidence, the jury was justified in finding that intercourse had taken place, as plaintiff claimed, and we think they were justified in finding that it occurred on-October 29th. There is no pretense or claim that it occurred on any other date. The more important question, as we view it, is whether the jury was justified in finding that defendant had time to go a quarter of a mile, either on foot or horseback, and be in relator’s house 25 minutes. We think the jury was justified in finding that defendant had not covered the time so closely during the forenoon as that he would not have time to do so. A variance of a quarter of an hour or a half hour earlier or later, either way, or both, as to the whereabouts and doings of defendant, during the forenoon, would give him time. The credibility of the witnesses on the disputed point as to the time of day was for the jury. The jury could have found that the defendant did pass claimant’s house on the morning *1322 of the 29th, and go to Hannah’s. The fact that disinterested witnesses contradict defendant as to this affects his credibility. Hannah testifies that he was at his house but a short' time. There was no particular reason for defendant’s wife and Miss Thompson to watch defendant all the forenoon. They were engaged about their household duties.

2. The defendant requested an instruction to this effect:

3' instructions' of innocence “You are instructed that the defendant is presumed to be innocent until it has been shown by a preponderance of the testimony that he guilty. Before the defendant can be found guilty, the plaintiff must show by a preponderance of the evidence that he is the father of her child, which is in question in this case.”

Error is assigned because of the refusal of this instruction. The latter part of this instruction requested by defendant was covered by the instructions given by the court. The court instructed the jury, in substance, that the burden of proof was upon the State to establish, by a preponderance of the evidence, that defendant is the father of the 'child; and that, if the fact is so established by the evidence, then the jury should find the defendant guilty; and that, unless it is so shown, the finding should be for the defendant. Appellant cites at this point State v. Wangler, 151 Iowa 555, at 562, where an instruction given by the lower court in a bastardy case, telling the jury that defendant was to be presumed innocent until the jurors were convinced, by a preponderance of the evidence, that he was guilty, was approved, in a way. But, in that case, the complaint was as to the instructions, and the court said that, because of the instruction just referred to, the defendant was not prejudiced by the refusal to give other instructions asked. They also cite State ex rel. Bjorn v. *1323 Creager, 97 Kan. 334 (155 Pac. 29), where a similar instruction was given. Probably, such an instruction would not be prejudicial to defendant. It may be that, in some instances, the force or importance of the presumption is exaggerated by counsel in argument, and perhaps by the jury. In 1 Jones’ Blue Book of Evidence, Section 12 A, cases are to be found both ways, some holding that, even in a civil case, such an instruction as that asked is proper. We held, in State v. Hayward, 153 Iowa 265, 268, that, even in a criminal case, the failure of the court to instruct that the law presumes every man innocent until he is proven guilty, was not error. In that case, the court instructed that every material element of the crime charged must be proven beyond a reasonable doubt; and this in itself presupposes the innocence of the accused. In addition to this, jurors of ordinary intelligence understand that, in law, every man is presumed to be innocent until proven guilty beyond a reasonable doubt. It is true that, in that case, such an instruction was not asked. In the instant case, there was but one element or question, — the paternity of the child; and the jury were plainly told that, before they could find the defendant guilty, they must be satisfied, by a preponderance of the evidence, of his guilt. The instructions given are equivalent to this requested one, as was the case in the Hayward case. There are many instances where there is a presumption of right conduct. The books say that, in the ordinary transactions of life, fairness and honesty will be presumed, and conveyances, sales, and contracts generally are presumed' to have been made in good .faith, until the contrary appears. A public officer is presumed to do his duty. There are many such cases; and though, in some cases, it may be proper enough to give such an instruction, yet we are not cited to, nor do we find, cases where a failure to so instruct the jury would be error. Perhaps, in some of the cases just referred to, it *1324 would not be error to give an instruction of that kind; but the question is whether it is necessary to do that, and whether its refusal is reversible error. It seems to us that there would be more reason for giving such an instruction in a criminal than in a civil case. 16 Cyc. 1081. But we have shown that the court has said that, in a criminal case, it is not always necessary. It appears to us that the sum of it is that the jury should be told that the defendant must be proven guilty in a criminal case beyond a reasonable doubt, and in a civil case by a preponderance of the evidence. The presumption obtains all the time, whether a party is on trial or not, in every action, civil or criminal. 1 Jones’ Blue Book of Evidence, Section 12 A and Section 13. We see no reason why such an instruction is required in1 a civil case, unless the presumption has the force of evidence. The presumption in question is not of that character, even in a criminal case. State v. Linhoff, 121 Iowa 632. We think there was no error in refusing the instruction in question.

i. bastards : instructions 3. The defendant’s requested Instruction No. 2 was refused, and error is assigned because thereof. The instruction is a long one, covering two pages of the abstract, and too long to set out in full. It recites a number of circumstances proper for jury consider. We think it is not necessary to give the language, but so much only as bears upon the question which appellant now relies on, and argues as an offered instruction on alibi. Some of the matters referred to in it were covered by the instructions given; some of the statements are=more or less argumentative. The part now relied upon as being a request for an instruction on alibi is simply one of numerous circumstances enumerated, and is to the effect that it would be proper for the jury to consider where defendant was, and whether he was at plaintiff’s house. As to this feature, *1325 we shall give the instruction as asked, or the substance of it. The material part of the instruction in regard to the question now under consideration is practically as follows:

“The jury is instructed that, ordinarily, the exact time when the child in question was begotten, in proceedings of this character, is immaterial, so long as it is within the period of gestation. The testimony of Lila McKeever refers to but one time when it is claimed by her that she had sexual intercourse with this defendant, and that was on the 29th day of October, 1915, at the home of her brother. Lila McKeever claims in her testimony that at no other time or place did she ever have sexual intercourse with the defendant. The defendant denies that he had sexual intercourse with the plaintiff at that time, or any other time. In determining whether the defendant is the father of Lila McKeever’s child, *' * * you should consider no other time or place save and except in the home of her brother, on the 29th day of October, 1915; as there is no evidence on either side that the said Lila McKeever ever had sexual intercourse with him, unless it occurred on the 29th day of October, 1915, at the home of the brother of the said Lila McKeever. You should consider, in determin--ing what the truth is about the matter of associations, his treatment of her before and after October 29th, as throwing light on whether defendant had sexual intercourse with her at that time and place, and where the defendant was on that day, whether at relator’s home or elsewhere; and in this connection you should consider the interest, if any, of the witnesses * * * and from all the testimony determine whether or not defendant did have sexual intercourse with plaintiff on that date,” etc.

So that the reference in this instruction to his whereabouts is one of numerous circumstances referred to in the instruction. The court is not required to instruct on every phase of the testimony. We think the request for this *1326 instruction does not amount to a request for an instruction on alibi. Counsel concede that it is not in proper form to present that question, but say that the principle was referred to, and that the court, therefore, should hare given one on that subject. But several other matters were therein called to the attention of the court, just as much as the question of his whereabouts, and we think it would have been well enough for the court to have referred to some of these; but we are discussing now the question of alibi, and whether defendant did really request an instruction on alibi. Had ordinary instructions been given by the court as to alibi, defendant would be in a position to complain, and say he had not asked an instruction on alibi. , The instruction offered does not mention alibi, does not state that the burden of proof is on the defendant (State v. Fry, 67 Iowa 475, 478), and does not advise the jury to scan the testimony introduced by defendant to establish the alibi with care and caution, as it is recognized under the law as a defense easily manufactured (State v. Rowland, 72 Iowa 327). It is our experience that attorneys defending generally prefer that the court should not give such an instruction, and complain if it is given. Of course, alibi is a legitimate defense, but it is known of all men that, as to the time of day, witnesses are easily mistaken. But, after all, appellant’s argument is directed, not so much to the time of day, as it is to the date or day in the month. The argument is that, complainant having fixed October 29th as the date, to permit the jury to return a verdict of guilty on any other occasion, and on any other time except October 29th, would be to permit the jury to return a verdict that had no support in the evidence, and would permit the jury to find defendant guilty of acts of sexual intercourse with complainant at times when there is no evidence that defendant had intercourse with her. Appellant cites State v. Ryan, 78 Minn. 218 (80 N. W. 962). In that case, the complain *1327 ant positively fixed August 25th as the date of the intercourse, and the court instructed that, unless there is proof of acts of sexual intercourse on the 25th of August, or about that date, etc. The court held that, under the peculiar circumstances of that case, this was error, although recognizing the fact, as the offered instruction in this case does, that the precise date is not always material, provided it is within the period of gestation. In that case, the evidence showed that, on the date fixed, and for two days, she had been menstruating, and that this condition continued for about two days afterwards. The evidence showed that a woman is not likely to become pregnant under such conditions, and the evidence further showed that the parties were together on other occasions, not far from August 25th. We think the cases are readily distinguished. In the instant case, the court did hot instruct as to October 29th or “about that datethe complainant and defendant were not together on other occasions near October 29th; and other conditions existed there which are not found in the instant case.

State v. Creager, supra, is also cited, as sustaining a similar proposition. The offered instruction recites that there is no evidence on either side that Miss McKeever ever had sexual intercourse with defendant, unless it occurred on the- 29th .day of October, at the home of her brother. The jury knew this just as well from the evidence as if they had been against old -by the instruction. We must assume that the jury has common sense,’ and we ought not to assume that the jury will disregard the testimony, and find that the intercourse took place at some other date, when there is absolutely no evidence that it did occur at any other time. The jury must have understood that, before they could find the defendant • guilty, they must find he had intercourse with complainant at the time and on the *1328 occasion testified to by her. Furthermore, the court instructed the jury:

“5. The complainant claims that, on the 29th day of October, 1915, the defendant came to her home in Bear Grove Township, and there had sexual intercourse with her, and that she became pregnant as a result of such intercourse, and was delivered of a child on July 26, 1916, and she claims that defendant is the father of the said child. All of the above matters are denied by the defendant.. The burden of proof is upon the State to establish, by the greater weight of the evidence before you, that the defendant is the father of the said child; and, if this fact is so established by the evidence, then you should find the defendant guilty; but, unless it is shown that he is the father of said child, by the greater weight of the evidence before you, then you should find defendant not guilty.”

The court further instructed the jury that they should consider “each and every other fact and circumstance in evidence before you tending to throw light” on the question; “and, taking all such matters into consideration, you should weigh the testimony of each witness, in the light of reason and common experience,” etc. We have discussed to some extent the evidence on this point in a prior division of the opinion. We think there was no error in refusing to give the instruction in question. Evidence as to so-called alibi in a civil case is evidentiary, and does not apply as in a criminal case.

5. trial : assumption » of fact. 4. It is thought that the court en;ed in giving Instruction No. 3. The objection is that it assumes facts essential to be established by proof, which were not admitted by defendant in Ms answer. In that instruction, the court said, in substance, that it was conceded or established by the evidence that complainant was an unmarried person, a resident of Cass County, and that, on the *1329 date stated by complainant, the child was born. It is true that the defendant did not admit these things in his answer, but the evidence was undisputed, so that the court was warranted in so stating.

g. New Trial: excessive verdict. 3. Finally, it is contended by appellant that the judgment is excessive. The amount fixed by the court was $2,250. The judgment provided that defendant pay into court, for the use of- relator in the maintenance and support of the child, said sum, with interest thereon from the date of the judgment. No oases are cited by appellant, and there is np definite rule as to the amount. Appellee cites State v. Ginger, 80 Iowa 574, where $700 avhs allowed. But that Avas nearly 30 years ago. They cite, also, Ludden v. Butters, 181 Iowa 94, as having some bearing. If any evidence was taken by the court as to the amount, it is not before us. It does not appear from the record that the amount allowed is more than sufficient to maintain the child. Probably we may take notice of conditions, in a general way, without proof. The amount does seem large; and yet living conditions are very high at this time. The amount fixed would amount to about $2.00 a week, until the plaintiff’s son will probably be self-supporting. That would be low, under present conditions. But doubtless there would be some interest. Under all the circumstances, we are not prepared to say that the judgment is too large. We discover no prejudicial error in the case, and the judgment is — Affirmed.

WeaveR, C. J., Ladd, Ea'ans, and Gaynor, JJ., concur.