State v. Brathovde

LEWIS, J. A complaint in bastardy proceedings set out tbe charge in tbe following language: * who, being duly sworn, on her oath says that she is pregnant with a child, which, if born alive, will be a bastard, and that Iver Brathovde is the father of such child, against the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota,” etc. When the action came on for trial in the district court, defendant objected to the introduction of any evidence on behalf of the state, on the ground that the complaint did not state facts sufficient to constitute a public offense, nor a cause of action against defendant, and that said complaint was indefinite and uncertain both as to time and place. The objection was overruled, and the ruling is assigned as error. 1. So far as the rules of evidence and pleading are concerned, such proceedings are of a civil nature, not criminal, and the sufficiency of the complaint is to be tested by the rules applicable to civil actions. This complaint is attacked chiefly on the ground that defendant was not furnished with a definite statement as to time and place, and for that reason he could not be prepared to meet the charge. Under the bastardy act, proceedings must be commenced in the justice court by the filing of the complaint. An examination before the justice ensues, and the evidence is reduced to writing; and, in case the accused does not comply with the provisions of the statute as to the care of the child and expenses, if there is probable cause for believing him guilty, the examination is returned to the district court, and the accused is required to furnish bonds for his [503] appearance. In tbe district court tbe trial proceeds upon tbe same complaint. Defendant does not waive a valid objection to tbe complaint because taken for tbe first time in district court. Tbe objection was timely, but tbe complaint was not open to tbe objection. It bas been tbe tendency of tbis court not to apply a strict rule of construction in reference to pleadings in justice courts, for tbe reason that public necessity requires that persons not educated and experienced as lawyers act as justices and attorneys in those courts. Tbe statute in question is very plain and simple, and seems to have been intentionally made so, because persons of limited legal, learning and experience must be charged with its enforcement. Tbe pleading under consideration should not be taken as a model, even in such proceedings, but it is strictly within tbe words of tbe statute. It might have been more specific and definite as to time and place, and, if a proper motion bad been made to that effect, no doubt tbe court would have so ordered. But tbe defendant could not have been taken by surprise by such omissions. He bad before him tbe examination taken in tbe justice court, and was fully apprised of tbe facts as testified to by tbe prosecution. Tbe complaint was good as against tbe objection made. A similar complaint was held sufficient in Zweifel v. State, 27 Wis. 396. '2. Defendant also claims that tbe evidence does not justify tbe verdict. As is usual in tbis class of cases, there are some denials on tbe part of tbe prosecutrix as to her consent to tbe embrace of defendant; but, on tbe whole record, we are satisfied that tbe verdict is sustained by tbe evidence. 3. In tbe course of his argument to tbe jury, counsel for tbe state made tbe following remark: “I want tbe jury to look at tbe child, and see if it is not marked with his [defendant’s] own face and countenance.” Counsel for defendant objecting, tbe court immediately addressed tbe jury as follows: “It is certainly improper for counsel to call tbe attention of tbe jury to any real or supposed resemblance between a child of that immature age and tbe defendant, and tbe jury will not take into [504] consideration any such matter; and, if counsel has called their attention to any such matter, it must be entirely and wholly disregarded.” It appears from the record that the child was only about three months old, and that it was in the keeping of the mother during the trial, and was frequently in the court room, in the presence and view of the jury. To say the least, such conduct on the part of a prosecuting officer is almost inexcusable. The legal representatives of the state in such proceedings should depend upon substantial, credible evidence, and not seek to influence a jury by calling attention to the mobile features of a babe in arms. It is a common saying that all young babies look alike, but such an invitation would tend to give free scope to the imagination, in attempting to test the attorney’s suggestion. However, the trial judge immediately instructed the jury to disregard the insinuation, and, having had the opportunity to consider the matter upon the application for a new trial, we must conclude that the court was right in holding that the incident was not prejudicial to the rights of defendant. Order affirmed.