APPEAL from the Circuit Court of Cook County; the Hon. MARILYN
R. KOMOSA, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is a paternity action brought by the State on the relation of Brenda Banks who alleged that a child was born to her out of wedlock on June 20, 1972, and that the father was defendant, Lawrence Leon Robinson. After a bench trial the court entered judgment in favor of defendant and plaintiff appeals.
The issue presented on appeal is whether a hearsay statement is admissible when there is no showing that the alleged declarant is unavailable or that the surrounding circumstances are such as would naturally lead to a trustworthy recitation of the event by the witness. Defendant-appellee filed no brief in this court and we would be justified in reversing pro forma for failure to comply with Supreme Court rules. But from an examination of the record, we have decided to review the matter on its merits.
As is the case with almost every contested trial of this character, the evidence is in conflict. Relator testified that both she and defendant worked at Bordens Ice Cream Company. She met him in July of 1971 and went out with him twice a week between July and October of that year. During that period she had sexual relations with defendant on four separate occasions. She stated that the last sexual relation occurred in October after she had learned that she was pregnant. She testified that defendant asked her if she had missed her period and that she told him she had. They discussed the possibility of an abortion and defendant agreed to share the cost. Relator further testified that between July and October, she did not have sexual relations with anyone else.
Defendant testified in his own behalf and stated that he met relator at a party in July 1971. Later that evening he had sexual relations with her in her apartment. He stated that except while working at Bordens he was never in her company again. He denied that he had intercourse with her more than once, that he asked her whether she had her period, and that he had any knowledge of possible plans for an abortion. He further testified that he first became aware of her accusation when he was summoned to court in 1973.
The instant controversy arises out of the testimony of Lawrence Brown who was called as a defense witness. Brown was asked if he knew one Jerry Briscoll. He responded that he did, and identified Briscoll who was in the courtroom. Brown testified that in the latter part of 1972 relator came to the plant with her baby. He stated that he observed the two of them in the company of Briscoll and a couple other co-workers. The following courtroom colloquy then took place:
"Defendant's Counsel: Now, who was holding the baby?
Lawrence Brown: Miss Banks was holding the baby.
Q. Was there any conversation when Miss Banks, Mr. Briscoll and the baby came over there?
A. Well, I heard a conversation, as far as Mr. Briscoll was concerned, as to come and see the baby.
Q. What did Mr. Briscoll say?
A. He said come and see my baby.
Plaintiff's Counsel: Objection, hearsay.
Defendant's Counsel: He said come and ...