Rindskopf v. State

Cole, J. This is a proceeding under cb. 37, R. S., to charge the defendant with the support of a bastard child. The first objection taken here is, that the judgment of the circuit court is void for want of jurisdiction. It is said that the record shows that there was no adjudication by the justice before whom the complaint was filed and who issued the warrant, that there was probable cause to believe the defendant to be the father of such child; and that without an adjudication of that fact by the justice, the circuit court had no jurisdiction of the proceeding. Mr. Justice Lyok, in the case of State v. Braun, 31 Wis., 600, expresses the opinion that this is the true meaning and proper construction of the statute, and that it was even questionable if the examination could be waived by the accused by entering into the recognizance required by the justice to appear before the circuit court to answer the charge made against him, so as to give the latter court jurisdiction. An examination of that case will show, however, that this question, whether the jurisdiction of the circuit court depended absolutely upon the fact that the justice had formally adjudicated that there was probable cause to believe the. accused guilty; was not necessarily involved, and therefore did not perhaps receive that careful consideration it would have received had it been essential to the decision of the point in judgment. The real question in that case was, whether a writ of prohibition should issue from this court commanding a justice to refrain from further proceedings in a second prosecution for bastardy* where it appeared that on a former complaint and examination before another justice, it had been adjudged that there was no probable cause for believing that the accused was the father of the child; and, it being held that the first adjudication was final upon the subject matter of the complaint, and that a party might avail himself of it on a second prosecution as a defense and bar to that proceeding, the writ of prohibition was denied for that reason. We are satisfied that the decision there made was correct and in accordance with sound principle. But where — 224 — a party chooses to waive an examination before' the justice, enters into a recognizance to appear before the circuit court to answer the charge, and does in fact appear and go to trial upon the issue, then whether the circuit court can be said not to have jurisdiction, is, as it seems to us now, a different question, and certainly was not definitely settled in State v. Braun. It appears to us that the circuit court, under such circumstances, would have jurisdiction to proceed and try the cause. The fourth section of the bastardy act in substance enacts, that in case any person accused of being the father of a bastard child, fails to settle with the mother with the approval of the supervisors, and to give the required bond as specified in section 3, “and there is probable cause to believe the accused person guilty, the justice before whom the complaint shall be made shall bind such person in a recognizance,” etc. Now it will be observed that the provision does not require that the justice shall make a formal adjudication of probable cause, in the nature of a judgment, and enter the same of record in his docket. But if “ there is probable cause to believe the accused person guilty,” he is to bind him in a recognizance. That is the language of the statute. Now, assuming for the purposes of this case that the record shows that no examination was had before the justice — the defendant having waived the same, — it surely does appear that the justice did bind the defendant in a recognizance to appear at the next term of the circuit court to answer the charge, and that in fact the defendant did appear and went to trial upon the merits without objection. The fact that the justice required the defendant to enter into a recognizance to appear and answer the charge, indicates and implies, as forcibly as any act could, that such justice had “probable cause to believe” the defendant to be the father of the child. Otherwise his action in the matter is inexplicable. If the statute required the justice to make a judicial determination of record that there was “probable cause,” etc., there would be more ground for claiming that such — 225 — determination must appear by tbe record, to render the proceeding regular, and in order to give the circuit court jurisdiction to try the cause. But, as before observed, this is not the language of the statute. It surely must be presumed that the justice had probable cause, founded upon some evidence or admission brought to his knowledge, for believing the defendant to be the father of the child, or he would not have required him to enter into the recognizance. It seems to us that this sufficiently disposes of the objection that the circuit court never acquired jurisdiction of the cause, and that its proceedings and judgment were coram non judice. During the trial, on account of the death of the mother of one of the jurors, the parties stipulated in open court to try the cause with eleven jurors, and the twelfth juror was thereupon excused by consent, and the trial proceeded, and the verdict was rendered by eleven only. It is now objected that the discharge of one juror from the panel, even with the consent of the defendant, rendered the trial and verdict illegal. This position we deem untenable. It has been held in capital cases, that a defendant could not waive his right to a trial by a jury of twelve persons (Cancimi v. People, 18 N. Y., 128): but that rule is in favorem vitae, and does not apply to a case of bastardy. This proceeding, though quasi criminal in' character (State v. Mushied, 12 Wis., 561; State v. Jager, 19 id., 285), is intended to enforce the duty and obligation of the father to support his offspring. It is quite analogous to a civil suit brought to enforce a merely private obligation, and the defendant may waive a strict adherence to the statutory and common law rule of proceeding. The doctrine of waiver clearly applies- — -the defendant having consented to a trial by a jury of eleven persons. The questions asked the witnesses Maximilian Lewis and Henry Adler, in reference to conversations with the complainant, and as to what she said about having had sexual intercourse with other men, were properly excluded. If the object ■ of those questions was to contradict the complainant, her atten — 226 — tion should have been called to those conversations in order to lay the foundation for impeaching or contradicting her. This rule is elementary, and applies likewise to the ruling of the court in sustaining the objections taken to the questions asked Schungel as to his conversation with the complainant. This brings us to a consideration of the objections taken to the form of the judgment. The order of filiation finds that the defendant is the father of the bastard child of which the complaining female is the mother, and that he stand chargeable with the maintenance thereof. The court further ordered and adjudged that the defendant pay the complainant for the maintenance of the child, the sum of $240 per annum for the term of thirteen years from the date of the judgment; said sum to be paid in monthly installments of $20 each, on the first Monday of each month, in each and every year during said period; and also that he pay the complainant the sum of $240 for the support and maintenance of the child from its birth, with costs of the prosecution ; and that he execute the proper bond to the supervisors of the town, conditioned for the faithful performance of the order and judgment. There are two serious objections taken to this judgment: First, it is said that it is illegal and wholly unauthorized in that it orders and requires the absolute payment of a specified sum monthly for a period of thirteen years, whether the child shall live so long or not. It is claimed that the duty and legal obligation of the defendant to support his illegitimate child only continues so long as the child may live, while this judgment, it is said, subjects the defendant to the absolute payment •of the monthly allowance for the entire thirteen years. If this were a correct view of the force and binding nature of the judgment — if it imposed the absolute liability to make these .payments for that period of time, even if the child did not live so long,— then we should deem the objection insuperable. But this is not a correct interpretation of the judgment. The liability of the defendant to make the payments will cease and — 227 — determine with the death of the child within the thirteen years. Suppose an execution should issue on this judgment after the death of the child, to collect any installment: would not the court recall the execution, upon the fact being shown that the child was dead, and that the duty of the father to support it was functus officio ? Or suppose an action were commenced on the bond for a breach thereof in not making payments after the child died: could not the defendant answer that he had performed his obligation to indemnify the town against the support of the child ? In either of the above supposed cases, it is very plain that the judgment would not be conclusive upon the question of the defendant’s liability to make the payments, but he could show that he was exonerated from making them by the death of the child. This, however, is matter of defense which the defendant might show whenever it was sought to enforce the judgment. Stokes v. Sanborn, 45 N. H., 274-281; Sweet v. Overseers of Clinton, 8 Johns., 23; Wellsworth v. Mead et al., 9 id., 367; Rockfeller v. Donnelly, 8 Cow., 643. Indeed, if the judgment had contained a clause qualifying and restricting the payments “ so long as the child should live,” it would not more fully protect the defendant than as it now is. For this is its meaning and undoubted legal effect, even in the absence of such a conditional clause. And inasmuch as the judgment does not conclude the defendant on the question of liability so that he cannot show, in any proceeding to enforce the payment of the allowances, that the child, is dead, and of course his duty to support it terminated by that event, we cannot see that he is in any way prejudiced in consequence of its being entered in the form it is. Secondly, it is said that the allowance for the support and maintenance of the child is excessive and unreasonable. This objection doubtless strikes the mind with some force when we consider only the character and condition of the complainant — that she was a domestic, and worked out for a living. But it appears from the bill of exceptions that the counsel for the de — 228 — fendant, in bis opening address to the jury prior to the introduction of any testimony on the defense, and also in his closing argument, admitted and claimed that the defendant belonged to a wealthy and respectable firm of the city of Milwaukee ; and this admission may be assumed to be in accordance with the fact. And if it be true that the defendant is a member of a wealthy firm, there is certainly nothing unreasonable or extravagant in the allowance. It is no more than sufficient to support, educate and clothe the girl decently and respectably. And, as remarked by Mr. Justice PAINE, in Hoffman v. The State, 17 Wis., 596, the statute evidently vests a large discretion in the circuit court in making these allowances. That dis - cretion should be and doubtless was exercised in this case with reference somewhat to the character, wealth and situation in life of the defendant. The bill of exceptions does not purport to contain all the evidence given on the trial; and in view of the statement of the defendant’s counsel above alluded to, we are unable to say that the amount ordered to be paid was unjust or excessive. This same remark will apply to the objection that the amount allowed for the past maintenance of the child was unreasonable and oppz-essive. There is nothing in the case which warrants such an assumption. On the whole case, therefore, we think the order and judgment of the circuit court are correct, and that they must be affirmed. By the Court. — Order and judgment affirmed.