Crum v. Brock

Smith, C. J., delivered the opinion of the court. This is a bastardy proceeding begun in the court of a justice of the peace, as provided by sections 268 et seq., Code of 1906 (sections 217 et seq., Hemingway’s Code). On the hearing, the complaint was dismissed by the justice of the peace, and the appellee, the mother of the child, appealed therefrom, in accordance with section 269, Code of 1906 (section 218, Hemingway’s Code). The complaint filed before the justice of the peace and the declaration filed in the court below, both allege that the appellee is. a single woman, and that on the 25th day of May, 1921, she gave birth to a bastard child, now living, of which the appellant is the father. The justice of the. peace before whom the cause was commenced filed a certified copy of the record in his court, which recites that he discharged the appellant when the cause came on to be heard before him, but the docket was introduced and disclosed no such judgment, and he himself testified that he did not enter the judgment on liis docket, but simply wrote it on a loose piece of paper. The certificate to the transcript of the proceedings before the jhstice of the peace, filed in the case, is dated January 2, 1922. When testifying as a-witness, the justice of the peace stated that he resigned in Tfecember, 1921, though he also stated that the transcript was filed by him in the court below before he resigned. While the cause was pending in the court below, the appellant filed a motion to dismiss it on two grounds: [866] “(1) Because there is no transcript of record of the proceedings had before the justice of the peace before defendant is alleged to have been tried. “ (2) Because there is no judgment of the justice of the peace in the record in this cause showing that there has ever been any proceedings in the justice court as required by law. ’ ’ The only defect in the transcript of the proceeding before the justice of the peace is that it appears to have been certified to after the resignation of [Iris office by the jhstice of the peace had become effective; but the whole evidence indicates that one of those two dates set forth therein is an error, and that, regardless of which of them is correct, the transcript was filed before the resignation became effective. It is, true that a proceeding of this character must be begun in the court of a justice of the peace, but that court has un final jurisdiction thereof, and the failure of the justice of the peace to enter on his docket the' order made by him, discharging the defendant, assuming that such an entry should have been made, did not operate to the defendant’s prejudice in any way, and at most was a mere irregularity of which he cannot complain; 7 Corpus Juris, 981. The court below committed no er'ror in overruling the motion to dismiss. The appellee is a widow, and was such both when the child here in question was begotten and born. The statute by which, this proceeding is authorized provides- that: “When any single woman shall be delivered of a bastard, or being pregnant -with-a child which, if born alive, would .be a bastard,” etc., its reputed father may be forced to support it and the appellant contends that a. single woman is one who has never been married, and consequently, that the court below erred in refusing to grant his request for a directed verdict in his favor. The,words “single woman,” as used in the statute, [867] evidently mean a woman who is not married at the time the child is born. A child begotten and born out of lawful wedlock is as much a bastard if the mother is a widow as it could possibly be had she never been married. The purpose of the statute is to provide a support for the child, both for its own good and to prevent it from becoming a charge on the public. The request for a directed verdict was therefore properly refused. The child was born on the 25th of May, 1921. The appellee testifies that the first act of sexual intercourse with •the appellant occurred “either the last of August or the first of September, 1920,” and, to prove that the child’s father may have been a man other than himself, the appellant offered two witnesses, each of whom were asked: “Were you down at a spring near Ada Brock’s house the latter part of August, 1920, and see something occur there between Ada Brock and Sam Tatum, down at the spring?” Each of them declined to answer this question, on the ground that it would tend to criminate them. An indictment against these witnesses was then introduced, which disclosed that they were being prosecuted for having testified on the preliminary hearing of this cause before the justice of the peace that they saw Ada Brock and Sam. Tatum engage in an act of sexual intercourse. The court below sustained the objection of the witnesses to testifying, and declined to make them answer. The evidence here sought to be introduced was, of course, competent, and, if believed by the jhry, would have cast serious doubts on the paternity of the child, and, unless within the privilege against self-crimination, the witnesses should have been compelled to answer the question. A fact tending to criminate which a witness m.ay not be compelled to disclose is “a fact that would form a. necessary and essential part of a crime.” Chief Jus [868] tice Marshauy, on the trial of Aaron Burr, quoted in 3 Wigmore, section 2260. . It is true that, had the witnesses given a negative answer to the question, they would have thereby disclosed the fact that they had formerly testified falsely relative thereto, and therefore on that occasion had committed perjury. Nevertheless, the fact that Ada Brock and Sam Tatum did or did not indulge in an act of sexual intercourse is no part of the crime of pprjury which the witnesses may or may not have committed when testifying relative thereto. The indictment of the witnesses for perjury is not here material, for, if no such indictment were pending, a negative answer by the witnesses to the question would tend to show that they had committed perjury on the former trial,' and had thereby become subject to a criminal prosecution. The same question could arise where a witness is being cross-examined as to former statements, made either in or out of court, contradictory to the testimony about which he is being then cross-examined. No case has been brought to our attention that would support a holding that the privilege against self-crimination can be here invoked, and we áre of opinion that it cannot be. * The court below erred in not compelling the witnesses to answer the question, for which the judgment must be reversed and the cause remanded. Reversed and remanded.