
    The People ex rel., Sandra Lyke, Plaintiff-Appellee, v. Hubert Rucker, Defendant-Appellant.
    (No. 54585;
    First District
    — October 20, 1971.
    Goldberg & Goldberg, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Hubert Rucker, was charged in a complaint with paternity of a child born out of wedlock to Sandra Lyke. In a trial without a jury, the trial judge found that the defendant was the father of the child and ordered him to pay $15 per week toward its support and maintenance.

The defendant contends, on appeal, that the evidence at trial was insufficient to support the finding of paternity against him.

The relatrix, Sandra Lyke, who was 24 years old and single, testified that on August 13, 1968, she gave birth to a premature baby. She said she first met the defendant, who was 32 years old, through her brother, in October, 1967. She saw him again in November, and then every day or every other day until January, 1968. She and the defendant engaged in sexual intercourse “about as often as I saw him.” Her last menstrual period ended on November 11th, and she had intercourse with the defendant two or three days later. In the latter part of December she discovered that she was pregnant. When she told the defendant, he said they were going to get married because he didn’t want to pay child support. He admitted being the father of the child and promised to support it. After the child was bom he gave her a baby gift. She did not see the defendant for a period beginning two months after she was pregnant until the baby was born.

On cross-examination, Miss Lyke testified that she was a bookkeeper at County Hospital. The first time she met the defendant, in October, they did not-have intercourse. The next time she saw him was “about Thanksgiving.” They went to a movie and then had sexual relations. She admitted that prior to meeting the defendant, she had dated a Theoris West, whose nickname was “Pistol”, whom she had known since she was 16 and with whom she engaged in sexual relations. She testified that the last time she had intercourse with “Pistol” was in early October and that she had not seen him since, nor had she seen any other men during the time she was having relations with Rucker.

The defendant, Hubert Rucker, took the stand in his own defense and was represented by counsel of his choice. He testified that he met the relatrix about the middle of October when she was with her brother, and that he saw her three times, but never had sexual relations with her because “she kept talking about this fellow she was going with pestering her. She always refused me.” He denied telling her that he knew he had made her pregnant. On cross-examination, he testified that he saw the relatrix about once a week during November and December, 1967, and that when he brought her home, he would go inside for 15 or 20 minutes.

Defendant argues that it was incumbent upon the plaintiff as in all civil cases to make out her case by a preponderance of the evidence and that this is not done where as here the testimony of the relatrix is contradicted by the testimony of the defendant and there are no other witnesses. We agree with defendant’s initial proposition that in a paternity case, the burden of proof is on the mother and the charge against the defendant must be proven by a preponderance or greater weight of the evidence. (In re Blackwell v. Welti, 46 Ill.App.2d 453, 197 N.E.2d 126.) It is well settled in Illinois, however, that the determination of the preponderance of the evidence depends not solely on the number of witnesses testifying for each side, but on the weight to be accorded their testimony. (De Frates v. Rowland, 341 Ill.App. 69, 93 N.E.2d 153.) This in turn depends upon the credibility of the witnesses, their demeanor on the stand, which only the trier of facts can judge. (Sulzberger v. Sulzberger, 372 Ill. 240, 23 N.E.2d 46.) Thus the Supreme Court has approved an instruction telling a jury that “where witnesses testify directly opposite to each other on a material point, the jury are not bound to consider the point not proved; that they have a right to regard all surrounding circumstances proved on the trial, and give credence to one witness over the other, if they think such facts and circumstances warrant it.” West Chicago R.R. Co. v. Lieserowitz, 197 Ill. 607, 614, 64 N.E. 718.

In the instant case, the cause was tried by the court without a jury. The trial judge who heard and observed the witnesses found from the evidence that Hubert Rucker was tire father of the child. “We are not permitted to disturb that judgment unless it is clearly and palpably against the weight of the evidence.” (People ex rel. Jones v. Schmitt, 101 Ill.App.2d 183, 242 N.E.2d 275.) After a careful examination of the record, we must conclude that there was ample evidence to support the findings of the trial court.

Defendant relies on McFarland v. People, 72 Ill. 368. In that case, the trial judge erroneously instructed the jury that the mother’s testimony with respect to the time of conception was entitled to greater weight than that of any other person. The Supreme Court, in reversing, stated that the court was not authorized to declare as a matter of law the comparative weight of the evidence. The Court also held that the following instruction, offered by the defendant, was improperly refused:

“That, in this case, both the mother of the child and the defendant are competent witnesses; and if one swears that defendant is the father of the child, and the other that he is not, then, if they are of equal credibility, [emphasis added] the one offsets the other, and unless further evidence, given by other witnesses for the people, or circumstances proven, give the preponderance for the plaintiff, your verdict should be for the defendant.” (p. 369.)

In the instant case, it is readily apparent that the witnesses were not of equal credibility and that the trial judge believed the testimony of the relatrix and disbelieved that of the defendant.

Defendant argues that the relatrix’s testimony regarding the date on which she had sexual relations with him was inconsistent since she testified on direct examination that she had had intercourse with defendant two or three days after her menstrual period and on cross-examination that the date was sometime around Thanksgiving. The difference of a few days, however, is immaterial. Moreover, even where there are inconsistencies in the testimony of the relatrix, the Appellate Court need not say that the judgment below was against the manifest weight of the evidence. People ex rel. Harrison v. Siroky, 343 Ill.App. 520, 99 N.E.2d 586.

The defendant also cites People ex rel. Jorczik v. Garines, 198 Ill.App. 435, in which the Appellate Court affirmed the trial court’s judgment for the defendant. In that case, however, the defendant’s testimony was supported by that of two other witnesses. In addition, although the relatrix’s testimony showed that the child was born 233 days after her first act of intercourse with the defendant (280 days is normal), there was no evidence that the birth was premature. In the instant case, the testimony of the relatrix that the birth of her baby was premature was uncontradicted.

For the reasons given the judgment of the circuí court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.  