Ham v. West

• Decision Date: 25 March 1918
• Docket Number: 19685
• Citation: 78 So. 291,117 Miss. 340
• Court: Mississippi Supreme Court
• Parties: HAM v. WEST

78 So. 291

117 Miss. 340

HAM v. WEST

No. 19685

Supreme Court of Mississippi

March 25, 1918

Division A

APPEAL from the circuit court of Perry county, HON. PAUL B. JOHNSON Judge.,

Bastardy proceedings by Ernie West, by next friend, against Elmore Ham. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

A. T L. Watkins, for appellant.

Evidently our lawmakers, in directing the testimony to be taken down in writing before the justice of the peace were not "joking." Evidently they intended that by so doing defendant might, while being arrested and imprisoned, or detained, and while the charge was being initiated, might be informed with the nature of the accusation against him and have an opportunity to prepare for his defense; he could then refresh his memory, as to where he was at the dates named as the time and place of sexual intercourse; the period of conception; who was with him; and consult with his witnesses have them refresh their memory, and prepare for his defense; show where he was at the time, who was present; would have some sort of opportunity of meeting the charge. "Where examination of the prosecutrix before the justice of the peace, should be taken down in writing, the examination should also be authenticated, as the right of the defendant to have the prosecutrix examined, is for his benefit" and was not waived by him. See 5 Cyc. pages 653-54.

As we understand, this kind of proceeding was unknown to the common law, and is an innovation on the common law, highly penal, and must be strictly construed, especially by she who would invoke its benefits. See Welch, v. Cliburn, 94 Miss. 446, under common law. She could not so much as testify in her own behalf. See 5 Cyc., page 657. It will also be remembered that a charge of like character could not be sustained by the uncorroborated testimony of the female alone; and as to the paternity of the child, Dr. Robinson, her only witness, only repeated the statement elicited from plaintiff, at the suggestion of an interested party, not in "extremis," not a dying declaration, and no such circumstances were shown, as would give it the solemnity of evidence. The statute would not apply to whet she might have said to the doctor under such circumstances, as shown. See Johnson v. Walker, 86 Miss. 863, and citations there.

We urge that in entering a voluntary nonsuit plaintiff put herself out of court, both as to the justice of the peace court and also the circuit court, and is perpetrating a fraud on the defendant, under cover of law. 5 Cyc., page 653.

The appellant urges that in a quasi-criminal suit, or bastardy suit, the proof should be, "to reasonable certainty" which is equivalent to "beyond a reasonable doubt." See 75 So. 175; so far from being "to a reasonable certainty," the preponderance of the evidence is with defendant. There was no verdict (legal). Sec. 277, Code 1906. See also 5 Cyc., page 669. The award should be for specific amount. See verdict, page 71 of record. The said verdict does not follow the instruction of the court, and is for no fixed sum, is manifestly contrary to the evidence and the law, and should be reversed and cause dismissed.

E. C. Fishel and Tally & Mayson, for appellee.

While the writer was not present, it is manifest from the phraseology, of the judgment, that the learned justice of the peace performed his duty; the rule is so well established as to be axiomatic that a judgment imports verity, and that the unvarying presumption is that public officials discharge their duty. Appellee could have prosecuted an appeal from the justice court to the circuit court from a judgment of nonsuit. Gill v. Jones, 57 Miss. 367; McKinnon v. Hall, 78 Miss 307, 29 So. 149.

With reference to the complainant that there should have been an examination of the prosecutrix, the defendant and witness before the justice and the substance thereof reduced to writing, we have to say: That there is no evidence that such was not done, but conceding for this purpose that it was not done, such a proceeding was not necessary or material to give the circuit court jurisdiction. The statute is directory. The requirement that the testimony be reduced to writing is primarily for the benefit of the defendant and may be waived by him. 5 Cyc. 654.

Without reference, though, for whose benefit that provision was designed, neither party ought to have any right jeopardized by a failure of the official to perform his duty. Neither could compel him so to do. The defendant and not the prosecutrix is the only one who could possibly benefit by a failure to put the testimony in writing. In case of her death the testimony in writing taken before the justice may be read in evidence and have the same force and effect as if she were living. Code 1906, section 272; Hemingway's Code, section...