Beals v. Furbish

Appleton, J. — It is urged that the proceedings before the magistrate taking the accusation and examination of the complainant, should have been quashed, because it is not alleged therein that she accused the respondent of being the father of her bastard child, at the time of her travail, and that she has continued constant in her accusation. By B. S., c. 131, § 1, the accusation and examination of the complainant may be made before the birth of the child, which “ if born alive may be a bastard.” By § 8, the accusation of the complainant at the time of the travail, that the person accused is the father of the child of which she is about to be delivered, and constancy in such accusation are required to render her a competent witness. These facts are not, by § 1, to be inserted in the preliminary proceedings. Prom the nature of the case, it must be so, because the process before the magistrate may bo had, and the accused required to give his bond before the birth of the child. [472] It is next objected that the time and place when and where the complainant’s child was begotten were not stated in said complaint and warrant, with reasonable and sufficient certainty. The allegation is, “ that she was between the first and fifteenth days of July, 1853, made pregnant with a child, and which was a male child, born alive, on the twelfth day of April, A. D. 1854.” The statute, § 1, only requires that the justice “ shall take her accusation and examination on oath respecting the person accused, and the time and place, as correctly as either can be described, when and where the child was begotten, and all such other circumstances as he may deem useful in the discovery of the truth.” No complaint is made that the place is not described with sufficient certainty. The objection taken relates only to the allegation as to time. In Tillson v. Bowley, 8 Greenl. 163, in the examination before the magistrate, it appeared that the complainant had charged the respondent with being the father of a child with which she was then pregnant, which she alleged was begotten on or about the 1.1th of April, without saying in what year. The complaint bore date Nov. 7, 1829. Weston, J., says, “it is impossible to mistake what April was intended,” and the Court sustained the proceedings. In Marston v. Jenness, 12 N. H. 144, air objection similar to the one in the case before us was taken, in reference to which Gilchrist, J., remarks, “ we have already held, that a complaint under this Act was not a complaint for an offence, in Marston v. Jenness, 11 N. H. 156, and it follows that the strictness usually required in criminal proceedings is not requisite here.” Robie v. McNuce, 7 Verm. 419, a complaint was held to be a civil process and amendable, and that the certainty as to time required in criminal proceedings was not necessary. “ We consider the verdict,” says Williams, C. J., “ has cured any defects if there were any in the proceedings, even as the complaint was before the amendment.” The complainant was properly admitted. Her accusation [473] •of tho father was made “ at the travail,” after the pains of labor had commenced, and before the birth of the child, and she is none the less competent because it was made in a temporary interval of comparative freedom from pain. Indeed it is not easy to perceive at what other time it could have been made. In the declaration filed in pursuance of § 7, the allegation is that the child was begotten on or about the 12th day of July, 1853. This section requires that the declaration should state the time and place, when and where the child was begotten, “ with as much precision as the case will admit.” The certainty in criminal proceedings is not necessary. The declaration is sufficient within tho statute. The jury rendered a general verdict of guilty, and upon inquiry by the Judge, answered verbally that “ the child was not begotten between the 1st and loth days of July, 1853, but probably after.” This in no way changes the verdict or detracts from its effect. The gist of tho matter before the jury was, whether the child of which the complainant had been delivered, was begotten by the defendant, and not on what particular day it was begotten. Ho was equally liable whether it was on the 12th or the 16th of July, as by the verdict it might have been. As to the main fact in the case, the jury found no difficulty. As to the time they could hardly be expected to be more accurate than tho mother, and it would be a novel course of procedure to grant a new trial because the jury could not on their oaths say on what particular day conception took place. Tho verdict rests on the testimony of the complainant. The attention of the jury was clearly and forcibly directed to all the circumstances tending in any measure to diminish tho force and effect of her statements. The degree of credit to ho given to her as a witness was a matter for them to determine. From the evidence as reported, there is nothing Indicating any such error on their part as to the facts, as according to well settled principles would require or justify eux interposition. Exceptions and motion overruled.