Altschuler v. Algaza

• Decision Date: 18 November 1884
• Citation: 21 N.W. 401,16 Neb. 631
• Parties: ALTSCHULER v. ALGAZA.
• Court: Nebraska Supreme Court

16 Neb. 631

21 N.W. 401

ALTSCHULER

v.ALGAZA.

Supreme Court of Nebraska.

Filed November 18, 1884.

Error from Platte county.James T. Brown and George G. Bowman, for plaintiff.

Cornelius & Sullivan and J. G. Higgins, for defendant.

MAXWELL, J.

The jury in this case returned a verdict that the plaintiff in error was the putative father of a bastard child, and the court thereupon rendered judgment that he pay $120 per year in quarterly installments for 10 years for the support of said child, and that he give security for the performance of the judgment. The errors relied upon in the plaintiff's brief will be considered in their order. On January 25, 1884, the defendant herein filed a complaint in writing and under oath, before John Rickly, one of the justices of the peace of Platte county, charging that she had been delivered of a bastard child on the twenty-second of that month, and that the plaintiff in error was the father of said child. A warrant was thereupon issued by said justice, by virtue of which the defendant (plaintiff in error) was arrested and brought before the magistrate, and, the defendant being present, the complainant was examined in regard to the charge made in the complaint, and her answers were reduced to writing. On cross-examination, the attorney for the accused asked the complainant a number of questions, to which objections were made and sustained. These rulings of the justice are now assigned for error. It is proper on cross-examination to ask the complainant any question in relation to any fact drawn out on the direct examination. The charge is a serious one, which may involve the reputation, financial ability, and liberty of the accused. The object of the examination is to ascertain whether there is probable cause to believe that the accused is the father of the child. When such is the case, if the accused do not pay the complainant such sum as may be agreed upon, and enter into a bond to the county to save it free from all charges for the maintenance of the child, the justice has a plain duty to perform, viz., to require the accused to enter into bonds for his appearance before the district court, and if he refuse or neglect to comply with the order, commit him to jail to answer the complaint in the district court. The trial is had in the district court, the justice being a mere examining magistrate. He acquires jurisdiction by the filing of the complaint, duly sworn to, and the arrest of the defendant. If an error is made in the examination, it does not affect the jurisdiction of the justice. The evidence given by the complainant on the examination before the justice is reduced to writing by him and transmitted to the district court, not to be used in original evidence of the guilt of the accused, but in order that her statements made before the justice may be compared with her testimony before the jury, either to confirm or impeach such testimony; but errors committed by the justice in the execution of testimony do not affect the jurisdiction of the district court. The first objection, therefore, is untenable.

2. That the verdict is not sustained by sufficient evidence. A general synopsis of the evidence cannot be given without mentioning the names of a number of apparently respectable people, which should be avoided as far as possible in this class of cases. The complainant swears positively that the accused had sexual intercourse with her on the seventeenth and eighteenth of April, 1883, and the child was begotten at that time, and that he is the father of such child. The accused denies this positively, and testifies that at the dates mentioned he was in the western part of Madison county, 20 or more miles from home, engaged in the business of taking insurance. It is unfortunate for him, perhaps, that he was unable to procure any application for insurance, or writing of any kind, received by him in course of the business of insurance at the place where he testified he was on the seventeenth and eighteenth of April 1883, or policy of insurance, or copy of memorandum thereof. Nor was he able to prove by any witness except himself the alleged alibi. One Clinton Smith, who seemed to glory in his shame, testified that on or about the seventeenth of April, 1883, he had sexual intercourse with the complainant. This she denies. It is very evident that the...