Commonwealth v. Cantrell

• Decision Date: 12 March 1898
• Parties: COMMONWEALTH v. CANTRELL.
• Court: Kentucky Court of Appeals

45 S.W. 72

COMMONWEALTH v. CANTRELL.

Court of Appeals of Kentucky.

March 12, 1898

Appeal from circuit court, Hart county.

"Not to be officially reported."

Proceeding in bastardy by the commonwealth, for use, etc., against Alfred Cantrell. In the county court, defendant was adjudged the father of the child, from which judgment he appealed to the circuit court, where a trial de novo was had. Judgment was entered for defendant, from which plaintiff appeals. Reversed.

Martin & Stewart, for the Commonwealth. D. H. Smith, for appellee.

PAYNTER J.

Nancy Middleton filed her affidavit before the county clerk of Hart county, in which she charged that the appellee was the father of her bastard child, which was begotten on or about the 2d day of June, 1891, and delivered on the 2d day of March 1892. This affidavit was made on the 21st day of February 1895. Upon this affidavit, the clerk issued a warrant to Green county, the county in which the appellee then lived. It seems that the warrant was not executed. On the 13th day of June, 1895, another warrant was issued to Hart county against the appellee, under which he was arrested; and, for his appearance to answer the charge of bastardy, he executed the bond which the law required of him. On the trial of the case in the county court, he was adjudged to be the father of the bastard child, from which judgment he appealed to the circuit court. The warrant substantially followed the statements contained in the affidavit; among others, charged that the "child was begotten upon her person by the said Alfred Cantrell on or about the 2d day of June, 1891, and born in Hart county, Kentucky, on the 2d day of March 1895." The complainant entered a motion in the circuit court to correct the warrant, wherein it stated that the child was born on the 2d day of March, 1895. The court refused to allow the correction to be made. The case proceeded to trial, on which the appellant established conclusively that the appellee was the father of the bastard child, and that it was born within three years before the affidavit was filed and the first warrant issued. Notwithstanding this, the court instructed the jury to find for the defendant. This was done upon the idea that the appellant could not prove that the child, which was begotten on or about the 2d day of June, 1891, was born on the 2d of March, 1892. The affidavit states that the child was born on the 2d of March, 1892. ...