Hellman v. Karp

• Decision Date: 19 February 1919
• Citation: 93 Conn. 317,105 A. 678
• Court: Connecticut Supreme Court
• Parties: HELLMAN v. KARP.

105 A. 678

93 Conn. 317

HELLMAN v. KARP.

Supreme Court of Errors of Connecticut.

February 19, 1919

Appeal from Court of Common Pleas, Hartford County; Daniel A Markham, Judge.

Complaint for bastardy by Mary Hellman against Morris Karp, brought to the city court of Hartford. Judgment of probable cause was rendered, and defendant bound over to the court of common pleas, where motion to erase from the docket was made and denied. Trial was had upon defendant's plea of not guilty, and judgment rendered that he pay complainant $96.50 being one-half the lying-in expenses and nursing, together with the costs of suit and $4 a week from date of birth of child until he attains the age of 14, and defendant appeals. No error.

Joseph P. Tuttle, of Hartford, for appellant.

Henry H. Hunt, of Hartford, for appellee.

WHEELER, J.

The first four assignments of error are based upon errors committed by the trial court in respect to certain findings. The defendant has sought to correct these findings under the procedure authorized by section 5832 of the General Statutes Revision of 1918, by which the evidence and rulings, duly certified, are made a part of the record, and if upon examination of these the court on appeal shall decide that the finding does not properly present the facts and rulings it shall correct the same.

In order to secure the correction of a finding by this procedure and to give the appellate court a basis of action, it is essential that the assignment of error shall state in such way as to fairly present, and thus make reasonably apparent such correction of the finding as is claimed. Churchill Grain & Seed Co. v. Newton, 88 Conn. 130, 132, 89 A. 1121; Dennison v. Waterville Cutlery Co., 80 Conn. 596, 597, 598, 69 A. 1022; Walker v. Waterbury, 81 Conn. 13, 15, 69 A. 1021.

The specification in assignment of errors 1 and 2, of the finding of the ultimate fact in favor of the plaintiff as set forth in paragraphs 1 and 2, does not state the correction desired in such way as to make reasonably apparent such correction.

The same criticism must be made of error 3 " in finding the ultimate facts in favor of the plaintiff" ; of error 4 that " the evidence was too conflicting, uncertain, and unreliable to base a finding of fact upon in favor of the plaintiff; and of errors 5 and 6, which are similarly affected.

But the case need not be governed by the strict observance of this technical rule of procedure, for if the corrections desired had been sufficiently stated, we think the evidence would not have justified their granting.

Before considering these questions, the rulings on evidence should be passed upon. Statements of the complainant as to the paternity of the child made subsequent to pregnancy and before the birth of the child were received in evidence over the defendant's objection and exception.

The defendant concedes that the decisions in this jurisdiction fully support these rulings in bastardy cases. Gen. St. § 6007, made evidence of this character admissible in support of the constancy of the accusation. This statute formerly read (Revision 1888, § 1207):

" And if such woman shall continue constant in her accusation, being put to the discovery, in the time of her travail, and also examined on the trial of the cause, it shall be prima facie evidence that such accused person is the father of such child."

The present form of the statute first appearing in the Revision of 1902, § 970, " And if such woman shall continue constant in her accusation, it shall be evidence that such accused person is the father of such child," does not compel the proof of constancy at the time of travail and on the trial, to make out a prima facie case, but merely permits the introduction of evidence of continued constancy in accusation as evidence that the accused is the father.

The statute as now in force does not restrict the evidence of constancy; it merely makes its introduction in the manner formerly required to make out a prima facie case unnecessary, and it makes it unnecessary to thus make out a prima facie case.

All evidence admissible under the former statute is equally now admissible under the present statute. And the decisions during the life of the earlier statute upon the kind and quality of evidence admissible in this class of cases retain their decisive authority. Booth v. Hart, 43 Conn. 480; Robbins v. Smith, 47 Conn. 187.

We admit this kind of hearsay evidence, not as evidence of independent facts, but as corroborative of the complaining mother's testimony to the same effect. The earlier statute required constancy in the accusation as a security against her possibly false oath in making out a prima facie case. The present statute permits such evidence; it does not compel it. Benton v. Starr, 58 Conn. 285, 288, 20 A. 450.

We have upon like ground admitted this kind of evidence in the trials upon an information charging the defendant with carnally knowing and abusing a female child under section 1148, General Statutes 1902. State v. Sebastian, 81 Conn. 1, 69 A. 1054.

The ultimate fact of the finding whose correction has been inadequately stated is, we may assume, the finding of the defendant as the father of the child. The plaintiff herself testified to this fact and to facts which tended to establish this fact. Her statements subsequent to pregnancy tended to prove her constancy in accusation of the defendant.

The certificate of birth reciting this fact was evidence in corroboration, for the certificate was made under authority of law, and the facts stated therein were required to be stated by the attending physician, and made upon the best information he could obtain. If it be true that the principal reliance of the physician was necessarily the plaintiff, the constancy of her accusation under such circumstances strengthens the corroboration, for while a false accusation might be made to relatives and friends, it would be less likely to be made to a representative...