Beeks v. Walker

ANHEítsoH, J., delivered the opinion of the court. Appellee instituted this action against appellant under the bastardy statute, sections 268 and 283 inclusive, Code of 1906 (sections 217 to 232 inclusive, Hemingway’s Code). The statute was followed. The action was begun in the court of a justice of the peace, and, later, proceeded with in the circuit court. Appellee recovered a judgment against appellant in the sum of five dollars per month for eighteen years. From that judgment appellant prosecutes this appeal. In her declaration appellee alleged that she was delivered of a bastard child on the 28th day of July, 1925, which was begotten by appellant on the fourth Sunday in October, 192.4. The court permitted appellee to testify, over appellant’s objection, that the child was be *402 gotten either on the fourth Sunday in October, 1924, or the first Sunday in November of that year. Appellant contends that this was error, because he had prepared his defense to meet the allegations of the declaration. Appellant undertook to prove, and there was evidence tending to sustain his, position, that he and appellee were not together on the fourth Sunday in October, and therefore the child could not have been begotten at that time. Appellant’s evidence was very largely addressed to the proposition that on that date he was elsewhere than at the place where appellee testified the child was begotten. No application was made by appellee to the court to amend her declaration so as to charge that the child was begotten either on the fourth Sunday in October, or the first Sunday in November, 1924. It was not necessary that appellee set out in her declaration the date on which the child was begotten, because of the common knowledge of the varying time which elapses between conception and birth. The vital thing in a case of this character is the date of the birth of the child; that should be set out in the declaration, and was set out in appel-lee ’s declaration in this case. It is not every immaterial fact, however, that is. surplusage in a declaration. The case may be such that a fact otherwise immaterial is made material' by allegation. The purpose of a declaration by plaintiff is to inform the defendant of the nature and character of the cause he is to defend. In this ease the declaration informed appellant that he was to meet a charge of begetting a bastard child born on the 28th day of July, 1925, and begotten on the fourth Sunday in October, 1924. We think appellant had the right to rely on the case made by appellee’s declaration. The trial court therefore erred in permitting, over appellant’s objection, testimony that the child was begotten either on the fourth Sunday in October, or the first Sunday in November, 1924. Over appellant’s objection, the midwife who attended appellee during the birth of her child was permitted to *403 testify that on the day after the child was born appel-lee stated to her that appellant was the father of the child. After this testimony was admitted, the witness having fully testified, on direct and cross-examination, to appellee’s declaration as to who was the father of the child, the court ruled ont the testimony. This testimony was clearly incompetent. Section 276, Code of 1906 (section 225, Hemingway’s Code), provides that in all bastardy proceedings where the mother has died, her declarations in her travail, proved to he her dying declarations, may, on the trial of the case, he received in evidence. It was held in Johnson v. Walker, 86 Miss. 757, 30 So. 49, 1 L. R. A. (N. S.) 470, 109 Am. St. Rep. 733, that the object of the statute was to extend the doctrine as to dying declarations to such declarations of the mother in bastardy proceedings,, and to place beyond controversy their admissibility, not merely as corroborative, but as original and substantive evidence. The evidence against appellant cannot he said to be overwhelming, although it was amply sufficient to sustain the verdict of the jury. There was a square conflict in the evidence on the issue whether appellant was the father of the child. In such a case, the admission of the testimony of the midwife to the effect that appellee stated, the day after the birth of the child, that appellant was its father, was calculated to have great weight with the jury. Usually when incompetent evidence is admitted and afterwards ruled out by the court the error is harmless. However, that is not always true, and we think this is a case of that character. This court has held that the admission of incompetent testimony, although afterwards ruled out by the court, if calculated to prejudice the rights of the party against whom it is admitted,' is reversible error. Chism v. State, 70 Miss. 742, 12 So. 852; Davis v. State, 85 Miss. 416, 37 So. 1019; Anderson v. State, 91 Miss. 407, 45 So. 360. The witness Ida Shannon was permitted to testify on behalf of appellee, over appellant’s objection, that on *404 Sunday, some time in the fall of 1922, she saw appellee standing in the door of her home, bnt did not see appellant there; that she there had a conversation with ap-pellee in which she asked appellee who was in the home with her, to which question appellee replied that appellant was there. The witness testified that she neither saw appellant nor heard him speak, and therefore she did not know whether he was in appellee’s home at the time referred to or not. Appellee testified that appellant was present in her home at the time referred to. Therefore the testimony of the witness, Ida Shannon, was strongly corroborative of that of appellee as to the presence of appellant. It was error to admit the testimony of this witness as to what appellee said with reference to the presence in her home of the appellant. It was purely hearsay testimony. The time fixed by the witness was somewhere about the time appellee’s child was begotten. The idea sought to be conveyed by the testimony was that appellant was then in the home of the appellee, and therefore had an opportunity at that time of having sexual intercourse with her. We do not mean to convey the idea that this error of the court would be sufficient to reverse the case; but we are of opinion that, taken in connection with the other errors referred to, it entitles appellant to a new trial. We do not notice the other alleged errors assigned and argued, because if they were errors they are such as will not probably occur on another trial. Reversed and remanded.