Bowers v. Wood

Gardner, J. Under the statutes from 1786 to 1860, it was held that a complaint, upon which a respondent charged with being the father of a bastard child was to be tried before a jury, must allege particularly, not only that the complainant had been delivered of a bastard child of which she alleged the respondent to be the father, but that she had accused him in the time of her travail of being the father of the child of which she was about to be delivered, and that she had continued constant in such accusation. As no prosecution under the statutes could be supported without proof of these facts, it was required that they should be distinctly alleged. Drowne v. Stimpson, 2 Mass. 441. Stiles v. Eastman, 21 Pick. 132. Rice v. Chapin, 10 Met. 5. The statutes to which we have referred were enacted before the passage of the act making parties in civil proceedings competent witnesses. The bastardy process is a civil proceeding, and the complainant is a competent witness under the St. of 1857, c. 305, which provided that parties in civil proceedings may be witnesses. Murphy v. Spence, 9 Gray, 399. In 1860, the General Statutes were passed, by which the law regulating bastardy proceedings was materially changed, and it has remained substantially as then enacted. [184] Section 16 of the Pub. Sts. c. 85 provides that the mother of the child shall be admitted as a witness in support of the complaint. It also provides, that if, when she makes her accusation, upon examination under oath, she accuses any man of being the ' father of such bastai-d child, and if, in the time of her travail, she accuses the same man of being the father of the child of which she is about to be delivered,' and has continued constant in such accusation, “ the fact of such accusation in time of travail may be put in evidence upon the trial to corroborate her testimony.” Under this section, the complaint does not depend upon the accusation made in time of travail and the continued constancy in such accusation. It therefore becomes unnecessary to allege it in the complaint. The allegations, if otherwise good,, are sufficient without it. The proof may satisfy the jury of the respondent’s guilt without this evidence. The statute makes it evidence to corroborate the testimony of the complainant. It is not required to allege such corroborative facts in the complaint. The demurrer was properly overruled, and the amendment was not necessary. The evidence of the complainant’s accusation of the respondent in the time of her travail, and of her constancy in such accusation, if otherwise competent, could be shown at the trial, without an allegation of such facts in the complaint. She was a competent witness for all purposes. Pub. Sts. c. 85, § 16. Murphy v. Spence, ubi supra. Exceptions overruled.