Benton v. Starr

• Decision Date: 30 October 1889
• Parties: BENTON v. STARR.
• Court: Connecticut Supreme Court

20 A. 450

58 Conn. 285

BENTON

v. STARR.

Supreme Court of Errors of Connecticut.

Oct. 30, 1889.

Appeal from court of common pleas, New Haven county; BRADSTREET, Judge.

J. W. Ailing and H. G. Newton, for appellant. E. P. Arvine and E. Zacher, for appellee.

LOOMIS, J. This is a bastardy suit. The complaint first alleges the capacity in which the plaintiff appears, "as he is father and guardian of Fannie E. Benton," and then avers that on the 5th of December, 1886, she was delivered of a bastard child, begotten by the defendant on or about the 1st of March, 1886; that in the time of her travail at the birth of the child she was put to the discovery, and charged the defendant with being father of the child, and has been constant in her accusation; that when the child was begotten she was and ever since has been a single woman; and that the child lived until the 17th day of December, 1886; and that she was subjected to great expense for its maintenance. The complaint was signed by the father of Fannie alone, but was sworn to by her and her father also. There was no allegation that she was a minor, but the fact appeared in evidence. The plea was a general denial. During the trial, no objection was made to the complaint, for want either of proper form or substance. The trial judge, after the trial, but before his decision, called attention to the fact that there was no allegation in the complaint that Fannie was a minor; and afterwards, while the judge had the case under advisement, counsel for the defendant wrote him, claiming for the first time that the suit should have been in the name of Fannie, and this point is made one of the prominent reasons for appeal. There was undoubtedly a defect in the form of complaint which could have been reached by a proper preliminary plea; but as the general issue was pleaded, and the parties confined themselves to this issue during the entire trial, we do not think the judgment ought now to be set aside on account of the objections made by the defendant. The complaint on its face shows that it was instituted solely in the plaintiff's capacity as guardian, and for the sole benefit of his ward. It shows that the injury was to the ward alone, and in terms avers that in consequence "she was put to great expense," etc. And it appears also that she, as well as her guardian, made oath to the complaint; so that in substance there was a compliance with the statute that requires the injured woman to 'complain on oath to a justice of the peace, in the town where she dwells, against the person she charges with being the father of such child." Gen. St. § 1206. The omission to allege that Fannie was a minor was of course a defect, but inasmuch as it is alleged that Charles L. Benton is her guardian, which necessarily implies minority, the latter fact is argumentatively alleged, and such a defect is waived by the omission to demur, and by the pleading of the general issue. Gould, Pl. c. 3, § 28, and chapter 10, §§ 18, 19.

The remaining questions for review relate to the rulings of the court relative to the admission of evidence. The principal complaint under this head is that the court improperly rejected as evidence for the defendant the declarations of Alexander St. Mare, made in one instance on the 18th of June, 1886, to one Corey, to the effect that Fannie was with child, and he was the father, and again to one Hunt on the 1st of July, 1886, to the same effect, and in addition asking advice whether he had better leave town or not; and still again, early in August of the same year, that he told one Bristol that Fannie was in the family way, and that he was the father of the child, and that they had agreed to charge it upon the defendant. The principle established by the decision of this court instate v. Beaudet, 53 Conn. 542, 4 Atl. Rep. 237, that the defendant may exculpate himself by showing the fact of another's guilt by evidence directly connecting him with the corpus delicti, but that disconnected declarations of third persons are to be excluded, is conceded by both parties. But, while the plaintiff claims the principle as completely vindicating the ruling complained of, the counsel for the defendant on the other hand contend that the question in the case at bar is distinguishable from that, and governed by other principles. They contend that because the act which results in bastardy must be by the concurrence of two persons, and implies a conspiracy, therefore the declarations of any male person as to his own guilty connection with the transaction, whom the defendant may accuse in order to exculpate himself, is admissible to show that the declarant and not the defendant is the father of the bastard. If the principles governing conspiracy, which the defendant invokes, could apply, it is to be noticed that the declarations of the alleged co-conspirator relied upon in this case were subsequent to the conspiracy act, and not in furtherance of any common design, and would therefore be excluded. Besides, in order to admit the declarations of a coconspirator, a foundation must be previously laid by evidence which in the opinion of the trial judge makes a prima facie case. In this case the only foundation would be the concurrent act of the parties resulting in bastardy, which is the main fact in the case, and was found against the defendant, and not for him.

Again, it was claimed in behalf of the defendant that the same reasons that allow the declarations of the mother as to the fatherhood of the child require and justify the admission of the declarations of the suspected father; that her declarations are admitted because they are facts illustrative of her conduct, and so are part of her conduct, and...