Cummings v. Church

• Decision Date: 08 March 1929
• Docket Number: No. 6572—568).,6572—568).
• Citation: 145 A. 102
• Parties: CUMMINGS, Director of Public Aid v. CHURCH (two cases).
• Court: Rhode Island Supreme Court

145 A. 102

CUMMINGS, Director of Public Aid

v. CHURCH (two cases).

No. 6572—568).

Supreme Court of Rhode Island.

March 8, 1929.

Exceptions and Constitutional Questions from Superior Court, Providence County; J. Jerome Hahn, Judge.

Bastardy proceedings by Matthew J. Cummings, Director of Public Aid, against Clarence A. Church. Judgment was entered adverse to defendant, and he brings exceptions and certifies certain constitutional questions. Exceptions overruled, and case remitted to Superior Court.

Elmer S. Chace, City Sol., and Clifton I. Munroe, Francis D. McManus and William H. S. Callahan, Asst. City Sols., all of Providence, for complainant.

Philip C. Joslin and Arthur H. Feiner, both of Providence, for defendant.

SWEENEY, J. After trial in the superior court the jury found that respondent was the father of an illegitimate child born of a woman residing in Providence. The case is now before this court oh respondent's exceptions and certain constitutional questions raised by him during the trial.

The complaint in this case is made under authority of chapter 843, Public Laws 1926, which became effective April 26, 1926. This chapter is in amendment of chapter 107 of the General Laws 1923, entitled, "Of the Maintenance of Bastard Children," which title has been amended to read, "Of children born out of wedlock."

Chapter 843 provides that complaint may be made against the father of an illegitimate child whenever any woman has been delivered of such a child, and chapter 107 provided that such a complaint might be made when an unmarried woman had been delivered of such a child. It appears in the record that the child mentioned in the complaint was born of a married woman October 21, 1924. This complaint was made October 18, 1927. After trial in the district court respondent was adjudged to be the father of the child and ordered to pay $8 each week for the support and education of the child from December 16, 1927, until the child arrived at the age of 16 years. Bespondent appealed the case to the superior court. At the trial in the superior court it appeared that respondent paid the lying-in expenses of the mother of the child and contributed to its support until June 10, 1925. Respondent did not testify, and no testimony was offered in his behalf. No motion for a new trial on the ground that the verdict was against the evidence was made by respondent.

The first exception urged by respondent is to the denial of his motion by a justice of the superior court to quash the complaint and warrant. This motion is based upon the ground that it appears by an inspection of the complaint, jurat, and warrant that the complaint and warrant are each dated October 18, 1927, and the jurat states that complainant made oath to the truth of the complaint October 19, 1927. Respondent claims that, as it appears that the warrant is dated before the complaint appears to have been sworn to, the issuance of the warrant was contrary to law and the warrant should have been quashed. Respondent takes nothing by this exception. The complaint, jurat, and warrant are on a printed form commonly used in the district courts. The variance between the dates on the jurat and the warrant was a clerical error made by the official signing them. The variance could have been amended, under authority of section 6297, G. L. 1923. Respondent was not apprehended until 13 days after the warrant was issued, and he then pleaded: "Not guilty." By this plea he waived the defect complained of. The variance did not affect the verdict nor result in a miscarriage of justice and by statute is not a cause for a new trial. Sections 5132, 6308, G. L. 1923.

The second exception is to overruling a so-called plea to the jurisdiction filed in the superior court. This plea was based upon the facts that the child was born October 21, 1924, of a married woman, and that the law then in force (Chap. 107) provided for a complaint only in behalf of an unmarried woman. The exception is without merit, as the complaint was not made under authority of said chapter 107.

Four constitutional questions raised by respondent during the trial of the complaint have been certified by the superior court to this court for answer. These questions arise upon respondent's claim that complaint cannot be made against him under the provisions of chapter 843 (effective April 1926), because the illegitimate child was born 18 months before said chapter became effective. Respondent contends that to sustain such a complaint violates his rights under section 10, art. 1, of the Constitution of the United States, inhibiting the passage of an ex post facto law, and of section 1 of art....