The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1908-05-12
Judge Henry c. Fox Holds
That There Is No Grounds
For Rehearing the Case in
Circuit Court.
APPEAL TO HIGHER
COURT is LIKELY,
Judge Claims That He Did Not
Err in Instructing the Jury
As Was Alleged by the De-
fenSe.

As had been anticipated, Judge II.
c. Fox of the Wayne circuit court this
morning, overruled the motion of the
counsel for the defense for a new trial
III the celebrated Smith-Naughan case.
After his ruling had been announced,
the court entered into an explanation.
T. J. Study, chief counsel for John d.
Vaughan, the defendant, asked for
ninety days in which to prepare a mo-
tiOn Of appeal and filing bond. Ed
ward Vaughan, brother of the defend
ant, was offered as security for a bond
of $1,000 The case will be carried to
the Appellate or Supreme courts. aC
cording to the desire of the defense.
The Smith-Naughan case developed
from an alleged breach of promise
to marry Susan J. Smith by John d.
Vaughan. the we'll known local resi-
dent. Mrs. Smith brought suit for
$lnn,G0n and was awarded a verdict Of
$500 by jury in the circuit court.
the litigation has continued ever since
on the motion for a new trial. The mo-
tiOn for a new trial was based on the
grounds the verdict was not in accord
with the evidence and that the court
erred in instructing the jury and per-
mitting a number of items to be re-
corded as evidence.
The bone of contention was based
upon the fact the attorneys for the
plaintiff were permitted to amend
their complaint after the trial had
been in progress for a week. The
complaint was made to correspond
with the evidence. The original com
plant ii was aVerred, failed to claim
any promise of marriage made by the
defense subsequent to 1904. The
amended complaint included an alleg-
ed promise made in June, 1906. This
latter promise included arrangements
for the marriage to take place the fol
lowing October. This latter promise
was the only one that had any bear
ing on the case. Evidence showed the
first promise provided the marriage
should take place three years after the
death Of Mr.. Naughans first wife This
contract was not put in writing and a
verbal contract to marry is void after
one year.
In reciting the merits of the case.
was the promise made to marry and
there is no doubt in my mind but that
the existence of such a contract was
established by fair prepOnderanCe of
evidence This the defendant denied,
but that of the plaintiff stands against
his statements and the plaintiff had
witnesses none of whom was impeach-
ed
The statute of frauds is involved in
this affair. The first promise TO mar
ry could have been no basis as cause
for action. If there had been no sub
sequent promise there would have
been no point to the case. The most
of the points raised by the counsel for
the defense in his motion are hypothet-
ical. All tend to the same end. I
think my instructions to the jury COW
cred the case fairly and squarely and
there was no error made there. My
charges to the jury were on the law
and | did not assume any hypothetic-
al questions. I regard this as a dan
gerous practice.
There was a close question and
that is what put the case under the
statute of frauds. l believed there
was a conflict in the evidence and
some point arose but l thought this
matter ought TO be left 70 the jury to
determine as it was a question Of fact
and proper TO be considered. The
question of doubt was submitted 10 the
jury for decision. The jury found
there was an abandonment Of the first
contract and a new one involved. I
would have permitted the testimony
about the first contract even if it had
not been presented a s it was. as it was
a part Of the history of the case