APPEAL from the Circuit Court of Greene County; the Hon.
CHARLES J. RYAN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant appeals from the judgment of the trial court in this paternity action finding him to be the father of complainant's child. Defendant also appeals from the denial of his motion for a new trial based on newly discovered evidence.
The first issue is whether the finding is against the manifest weight of the evidence. This requires a review of the evidence.
Cynthia Sue Raines testified she first became acquainted with defendant in March 1969. At that time she was living with her mother and stepfather in a tenant house on a farm owned by defendant and his father. She testified that on their third meeting, they had sexual relations. She further testified that between April 1969, and October 1970, they had intercourse 49 times. She recalled the number of acts by refreshing her memory by referral to a diary which she began keeping in January 1969. She testified that she numbered each act in her diary next to the date it occurred.
She testified that all of the acts except the first until January 1970 took place in a hayloft in a barn located 100 feet from the tenant house. Defendant kept livestock in the barn and complainant would join defendant there when he stopped by to care for the livestock. After January 1970, when her family moved from the house, the acts took place in defendant's car on a country road.
Complainant testified that she had not had intercourse with anyone else between September 1, 1970, and December 31, 1970. Her last menstrual period was in early October 1970. She testified that she had intercourse with defendant on October 6, 17 and November 14, 1970. On November 14 she told defendant she thought she was pregnant as she had missed her menstrual period in November. On July 12, 1971, she gave birth to a son. She saw defendant in June, July and August of 1971. She testified that on one of those occasions defendant promised to give her money if she did not name the child after him (which she did not.) Defendant never denied to her that he was the father of the baby.
At defendant's request, Cynthia wrote two notes and gave them to him. The contents were essentially the same. Both were to the effect that she had never had intercourse with defendant and the baby was not his. The first was dated February 1971 (before the birth) and the second December 25, 1971 (after the birth). Complainant acknowledged writing the notes of her own free will, although at defendant's request. She testified that she wrote them because she "didn't want to lose him" and that the statements were not true.
Complainant's stepfather testified that defendant and/or his father would be at the barn every day to feed livestock and that Cynthia went out quite often when defendant was there. When she returned in half an hour or an hour she would say she had been out with defendant. He himself had never actually observed the two in the barn.
Defendant, Byron Price, testified that he would go to the barn once or twice a day and several times the girls (complainant and her sisters) would come over. He had never had sexual relations with complainant. He first learned that he was being accused of paternity around Christmas 1970. A friend, Mrs. Dorks, called to say Cynthia had called her to say she was pregnant and was going to blame defendant. Defendant testified that he asked Cynthia to write the notes of February and December 1971, but that she did it of her own free will.
Mrs. Dorks testified that complainant called her in December 1970 to tell Mrs. Dorks she was pregnant and was going to blame Price although he was not the father. Mrs. Dorks also testified she was a good friend of Price's, that she had never talked with Cynthia Raines prior to the phone call and that Cynthia said she called Mrs. Dorks because Mrs. Dorks was a good friend of Price's. Cynthia denied making such a call.
Richard McCollum testified that he attended a party in a deserted house on October 20, 1970. He and three male friends at that time each had intercourse with complainant and her sister Gloria. He testified that Cynthia and Gloria had reputations for being easy to pick up. Both Cynthia and her sister Gloria testified that no such event occurred. The trial judge, as trier of fact, found that defendant was the father.
1 Defendant acknowledges the rule of law that the reviewing court will not reverse unless the findings of the trier of fact are against the manifest weight of the evidence. People ex rel. Lyke v. Rucker, 2 Ill. App.3d 113, 276 N.E.2d 139.
In a paternity action, the burden is on the mother to establish paternity by a preponderance of the evidence. This does not depend on the number of witnesses for each side, but depends on the weight to be afforded to the witnesses' testimony. That, of course, is a matter of credibility for the trier of fact. Rucker.
Defendant argues that complainant's testimony is so incredible as to be unbelievable. He points to the testimony that Cynthia kept a diary where she recorded every act of intercourse, and that ...