Esch v. Graue

• Decision Date: 07 December 1904
• Docket Number: 13,682
• Citation: 101 N.W. 978,72 Neb. 719
• Parties: FRED ESCH v. LIZZIE GRAUE
• Court: Nebraska Supreme Court

101 N.W. 978

72 Neb. 719

FRED ESCH v. LIZZIE GRAUE

No. 13,682

Supreme Court of Nebraska

December 7, 1904

ERROR to the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Rose & Comstock, for plaintiff in error.

Billingsley & Greene and R. H. Hagelin, contra.

OPINION

BARNES, J.

Fred Esch, hereinafter called the plaintiff, prosecutes error from a judgment of the district court for Lancaster county, by which he was found to be the father of the bastard child of Lizzie Graue, and was adjudged to pay $ 100 a year for 10 years, and the sum of $ 50 a year for 4 years thereafter for its support, together with the costs of the prosecution.

1. It is contended by the plaintiff that the court erred in allowing the child in question to remain in the court room during the trial. It appears that the prosecutrix came into court with the child, which was less than 5 months old, in her arms; that nothing was said about the matter until the close of the plaintiff's evidence and at a time when the cries of the child disturbed the counsel in his examination of one of the witnesses. He then objected to its presence, and a controversy between counsel arose over the matter. It does not appear that the child was exhibited to the jury, or that the attention of that body was in any way called to it, except as above stated. The jury made no comparison to ascertain whether there was any resemblance between the child and its putative father. It does appear, however, that one of the attorneys for the prosecution made a remark calculated to convey the impression that the child looked like the plaintiff in error, but the remark being excepted to the court said: "The exception is well taken. The child has not been introduced in evidence, and its appearance is not to be considered by the jury, and you should not consider the statement made by counsel." This left the plaintiff no cause of complaint, so far as that matter was concerned.

As the record stands, we are called upon to determine whether the mere presence of the illegitimate child in the court room, and the fact that it was in sight of the jury, calls for a reversal of the judgment. In other words, did the court err in refusing to order the child removed from the court room. In the case of Hanawalt v. State, 64 Wis. 84, 24 N.W. 489, the court said:

"In bastardy proceedings the bastard child may not be exhibited to the jury for the purpose of showing by its likeness to the defendant that it is his child."

This rule seems to have been approved by us in Ingram v State, 24 Neb. 33, 37 N.W. 943. In fact it is believed that the great weight of authority now holds that a child less than 2 years of age may not be exhibited to the jury for the purpose of showing its likeness to the defendant in a bastardy proceeding. It will be observed that in this case no such exhibition was in fact had, and it appears that the court made a finding to that effect on the hearing of the motion for a new trial, where that question was presented. So we hold that the case of Hutchinson v. State, 19 Neb. 262, 27 N.W. 113, states the correct rule. In that case it was held not error for the trial court to refuse to order or cause to be removed a seven months' old child brought by the prosecutrix to the witness stand, there being no reference made to it during the trial or...