Burnham v. State
| Decision Date | 24 April 1928 |
| Docket Number | Case Number: 18061 |
| Citation | 1928 OK 270,266 P. 781,130 Okla. 221 |
| Parties | BURNHAM v. STATE et al. |
| Court | Oklahoma Supreme Court |
¶0 Bastards--Bastardy Proceeding--Sufficiency of Complaint.
In a bastardy proceeding under article 3, chap. 70, C. O. S. 1921, a complaint under oath which shows that affiant is pregnant with a child, which, if born alive, will be a bastard child, that she is a resident of the county in which the complaint is filed, and that defendant is the father of such child, states facts sufficient to constitute a cause of action under such section, and a demurrer thereto on the ground that complaint does not state facts sufficient to charge a crime and that it does not state facts sufficient to confer jurisdiction upon the county court, is without merit and it is not error for the court to overrule same.
Commissioners' Opinion, Division No. 1.
Error from County Court, Lincoln County; S. A. Cordell, Judge.
Proceeding in bastardy before County Court of Lincoln County by June Lindsey against Friend Burnham. Judgment against defendant for $ 800 payable $ 25 per quarter to June Lindsey, and defendant appeals. Affirmed.
R. R. Rittenhouse, for plaintiff in error.
The Attorney General, for defendants in error.
¶1 This was a proceeding in bastardy brought in the county court of Lincoln county, Okla., under article 3, chap. 70, C. O. S. 1921. June Lindsey, on the 19th day of December, 1925, made an affidavit before Mollie B. Powers, a notary public in and for Oklahoma county, Okla., as follows:
"Before me, the undersigned notary public of Oklahoma county, Okla., personally appeared one June Lindsey, on this 19th day of December, 1925, and being by me duly sworn, says, that she is a resident of Lincoln county, Okla.; that she is now pregnant and with child, which, if born alive, will be a bastard child; that she is a single and unmarried person, and was such at all times mentioned herein; that the defendant, Friend Burnham, is the father of her child, and her child is the result of an act of sexual intercourse between the said June Lindsey and the defendant, Friend Burnham."
¶2 We will not copy the certificate of the notary, as the same is in nowise made the subject of attack. Upon filing of this affidavit, a warrant issued, and defendant, Friend Burnham, was arrested by sheriff of Lincoln county on December 21, 1925, and carried before S. A. Cordell, county judge of Lincoln county, and upon arraignment, entered a plea of not guilty and demanded a trial by jury. Defendant was admitted to bail in sum of $ 750, and cause set for trial November 17, 1926. On November 16, 1926, defendant filed his affidavit for continuance, which affidavit, in substance, was that defendant could not go safely to trial without evidence of Dr. J. W. Adams, who had been duly subpoenaed, but who had left the state, and his whereabouts was unknown to defendant; that if witness were present he would testify in substance that June Lindsey had a conversation with witness, wherein she told him that seven or eight months prior to time of the conversation, she and a girl friend, whose name affiant does not know, were in Oklahoma City, and that they were invited out for a car ride, and during the car ride June Lindsey had intercourse with a young man with whom she was riding, which resulted in her pregnancy; that she had never seen the young man prior to nor since the act of intercourse, and did not know his name; and that the name of Friend Burnham was not mentioned in the conversation. Upon consideration of the affidavit by court on the 17th of November, 1926, the state admitted the truth of the affidavit, and the case was ordered to trial. Defendant, through his counsel, filed a demurrer, without prejudice to trial, and his grounds therefor are: First, that complaint does not state facts sufficient to charge defendant with crime of bastardy; second, that said complaint does not state facts sufficient to charge defendant with a public offense; third, that said complaint does not state facts sufficient to confer jurisdiction upon county court of Lincoln county, Okla. This demurrer was overruled with exceptions to defendant.
¶3 Upon trial of cause upon merits, the state introduced June Lindsey, who testified at length to having known and been associated with defendant for three or four years, and with having kept company with him for a considerable part of that time; that he lived about eight miles from witness, and that they had numerous acts of intercourse; that the child was born December 23, 1925; that she discovered that she was pregnant about middle or last of April, and informed defendant of her condition, and he told her to see Dr. Adams, and to make up some lie to tell him, but not to mention his name in connection with it; and that she told Dr. Adams. He also told witness to inform the doctor of the condition, and that he would get rid of it for the witness; that she went with no other boys or men during months of February, March, April, and May before birth of child, but that she was going with defendant during said period.
¶4 Corroborative testimony by the mother and father of prosecuting witness was introduced, but it is not necessary to set same out herein. No evidence was introduced on behalf of defendant. The court charged jury, who later rendered their unanimous verdict finding defendant guilty.
¶5 Defendant's motion for new trial was overruled, and it was adjudged that prosecuting witness recover of defendant for support of her bastard child, of whom defendant was adjudged to be the father, the sum of $ 800 and costs, and that defendant enter into a bond with two good and sufficient sureties for payment of said judgment, which was ordered paid at rate of $ 25 per quarter, and from which judgment this appeal is taken.
¶6 The brief of defendant argues but a single point, to wit: "The trial court erred in overruling defendant's demurrer to the bastardy affidavit or complaint," and since this is the sole question presented, we shall confine ourselves to the same point.
¶7 Was the bastardy affidavit or complaint sufficient?
¶8 Section 8059, C. O. S. 1921, is as follows:
...
To continue reading
Request your trial
-
Clark v. State
...State, 42 Okla. 603, 142 P. 406; Ratzlaff v. State, 102 Okla. 263, 229 P. 278; Maisch v. State, 128 Okla. 226, 262 P. 203; Burnham v. State, 130 Okla. 221, 266 P. 781; Ratzlaff v. State, 122 Okla. 263, 249 P. 934. ¶3 We think, however, defendant's motion to make more definite and certain sh......
-
Cudd v. State, Case Number: 21213
...General in his brief contends that the rule announced in the Ratzlaff Case, supra, was directly overruled in the case of Burnham v. State, 130 Okla. 221, 266 P. 781, where the court in the body of the opinion said: "Defendant claims that: "'The complaint should have alleged with definitenes......
-
Greenback v. State
...of the charge' so that he may advisedly and intelligently prepare his defense." ¶5 And in commenting upon this section in Burnham v. State, 130 Okla. 221, 266 P. 781, the court said: "This means, as we understand it, that defendant must have clear information with reference to the accusatio......
- Burnham v. State