Berry v. Chaplin, 74 Cal. App. 2d 652 (1946)

Citation: Berry v. Chaplin, 74 Cal. App. 2d 652 (1946) 2.
Parent Document: Berry v. Chaplin, 74 Cal. App. 2d 652 (1946)
Jurisdiction: California (state)
Effective Date: 1946-05-27
Original Source: https://www.courtlistener.com/opinion/2616982/berry-v-chaplin/ ↗

Full Text

2,339 chars

2. Did plaintiff make out a prima facie case against defendant? “Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence.” (Code Civ. Proc., § 1833.) “The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason.” (Code Civ. Proc., § 1844.) A witness is presumed to speak the truth. (Code Civ. Proc., § 1847.) Whether Miss Berry was entitled to full credit was for the jury and the trial judge to determine. (Estate of Gird, 157 Cal. 534, 542 [108 P. 499, 137 Am.St.Rep. 131]; Estate of Snowball, 157 Cal. 301, 305 [107 P. 598].) She testified that she and defendant had four acts of sexual intercourse at or about the date when, in the ordinary course of nature, the child must have been begotten. These acts occurred on the 10th, 23d, 24th and 30th days of December, 1942. This evidence alone was sufficient not only to constitute a prima facie case but to sustain the verdict although denied by defendant. {State v. Reese, 43 Utah 447 [135 P. 270, 273].) Her testimony was corroborated by defendant’s butler as to the fact that she arrived at defendant’s home on the evening of December 23d and remained there until some time in the afternoon of December 24th, occupying either defendant’s room or a room connected therewith by a bathroom, and that defendant was present in the room during at least a portion of the night of the 23d and in the morning of the 24th. The testimony of the butler that in a conversation had by him with Miss Berry in the spring of 1943 she stated that she was married to a captain in the army and was going to have a baby did not detract from the prima facie case made out by other evidence. It does not appear that she stated when she had become the wife of the captain, and even if it were true that she had married after December, 1942, and even though her evidence were contradicted by other evidence, a prima facie case still remained. Defendant’s admission that he had had illicit relations with Miss Berry prior to March, 1942, is not contradictory of her testimony *662but in fact tends to corroborate her evidence and to show the probability of his having had sexual intercourse with her in December, 1942. (State v. Reese, 43 Utah 447 [135 P. 270, 278].)

Other Sections in This Document (106)

Full Text