Commonwealth v. Bondie

• Decision Date: 28 February 1939
• Citation: 277 Ky. 207
• Parties: Commonwealth ex rel. Baker v. Bondie.
• Court: United States State Supreme Court — District of Kentucky

277 Ky. 207

Commonwealth ex rel. Baker v. Bondie.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

February 28, 1939.

1. Bastards. — A bastardy proceeding is a civil one, and its prosecution, enforcement and all steps that may be required to be taken are to be governed exclusively by civil rules of practice, and not by those applicable to criminal prosecutions.

2. Bastards. — In bastardy proceeding, giving of instruction requiring verdict of not guilty if jury should entertain a reasonable doubt as to defendant being father of child was prejudicial error.

3. Bastards. — In bastardy proceeding, instruction requiring unanimous verdict was prejudicially erroneous.

Appeal from Jefferson Circuit Court.

LAWRENCE S. GRAUMAN, County Attorney, and RICHARD P. WATTS for appellant.

G.P. BUTLER for appellee.

Before WILLIAM H. FIELD, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE THOMAS.

Reversing.

This is a bastardy proceeding originating — as required by statute — in the county court of Jefferson county, at the instigation of Bertha Louise Baker, the mother of the illegitimate child. At the hearing in that court defendant was found not guilty by the jury. An appeal was duly prosecuted to the Jefferson circuit court and was heard before Hon. William H. Field, Judge of the Common Pleas Branch, Third Division, of the circuit court for Jefferson county. At the close of the evidence he refused instructions Nos. 1, 2 and 3 offered by appellant and plaintiff below, and then on his own motion gave to the jury instructions of the same designations (Nos. 1, 2 and 3) but which were materially different — especially as to No. 2 — from those offered by plaintiff. No. 2, as given to the jury by the court, said: "If, on all the evidence, you entertain a reasonable doubt as to Bondie being the father of the child, you should find Bondie not guilty." The court also instructed the jury that its verdict must be unanimous and could not be returned by a less number than the entire membership. By those instructions the court construed the procedure as a criminal one and to be practiced by the rules governing criminal prosecutions. The jury returned a verdict finding defendant not guilty, followed by a judgment dismissing the proceedings, to reverse which plaintiff prosecutes this appeal.

In the trial court's opinion overruling plaintiff's motion for a new trial it is stated: "I treated the proceeding as criminal in nature." The cases of Smith v. Mustain, 210 Ky. 445, 276 S.W. 154, 44 A.L.R. 386; Maher v. Commonwealth, 242 Ky. 51, 45 S.W. (2d) 465, and Early v. Bradfield's Ex'x, 266 Ky. 395, 99 S. W. (2d) 190, are then referred to, and with reference to the opinion in the latter case the court said: "While the comment was in no way decisive, it was asserted that `a bastardy proceeding is a civil action.' We may consider the Court of Appeals as committed to that doctrine, which prevails in the majority of jurisdictions." Nevertheless, the opinion seems to cling to the interpretation that the practice in such a procedure should conform to the rules governing criminal prosecutions, and not those applicable to civil actions. The learned trial judge finally concludes that "All this is, however technical. Admitting the prima facie technical error, it does not necessarily follow that in the particular case, it was prejudicial." He then sustains the practice he adopted in the trial of this case before him upon the ground that "Under the facts I believe the instruction justified," upon the theory that the two errors referred to in the instructions — and practically admitted to be such — were non-prejudicial. With that conclusion we are unable to agree.

It is not necessary for a recitation of the testimony to be made in this opinion. Suffice it to say that the case against defendant was about as convincingly made out by the testimony of the complaining mother of the unfortunate child and other witnesses as is usually met with when the paternity of the child is denied by the defendant in such a proceeding, and we have been unable to find any fact throughout the record whereby the admittedly erroneous practice is softened to the point where it may be considered as non-prejudicial. We stated that the court in its opinion referred to the case of Smith v. Mustain, supra, during the course of which it is parenthetically said: "And a bastardy proceeding is a criminal prosecution." That case was an action for slander, and while the quoted expression from the opinion had a pertinent setting, it was nevertheless one parenthetically made and non-essential to the determination of the issues presented. Beginning with the case of Schooler v. Commonwealth, Litt. Sel. Cas. 88, and continuously since then (with the possible exception of the Smith case supra), this court has consistently construed our statutes, providing for such a procedure, as creating a civil remedy and not a criminal offense. As a consequence such actions are governed throughout by the rules of practice applicable to civil proceedings and not by those applicable to criminal prosecutions.

The text in 7 Am. Jur. 680, Section 81 says in part: "In jurisdictions where the proceeding is simply to compel the putative father to support his child, it is almost uniformly held to be civil in its nature, since to determine the nature of an action, the court should look not so much to the method of procedure to be followed as to the end to be attained." In note 15 to that text there is listed 18 cases from the highest courts of the same number of states of the Union as supporting it, among which is the case of Emmons v. Commonwealth, 197 Ky. 674, 247 S.W. 956, 31 A.L.R. 601....