Hutchinson v. State

• Decision Date: 24 February 1886
• Citation: 19 Neb. 262,27 N.W. 113
• Parties: HUTCHINSON v. STATE.
• Court: Nebraska Supreme Court

19 Neb. 262

27 N.W. 113

HUTCHINSON

v.STATE.

Supreme Court of Nebraska.

Filed February 24, 1886.

Error from Cass county.

Crites & Ramsey, for plaintiff.

The Attorney General and J. B. Strode, for defendant.

REESE, J.

This was a proceeding against plaintiff in error under the bastardy law of the state. The trial in the district court resulted in a verdict of guilty, and judgment thereon in the usual form. The errors assigned in the brief of plaintiff in error will be examined in the order in which they occur therein.

The first contention is that “the court erred in sustaining a challenge for cause of defendant in error to the juror William Cole.” The voir dire examination of this juror disclosed the fact that he had lived in the neighborhood where plaintiff in error resided; that he knew him, and had heard a great deal of talk about the case; that he did not know that he had any opinion as to who should prevail in the suit; that he could not say that his mind was entirelyfree from bias or prejudice in the case, that he rather thought that the condition of his mind in that respect would have some influence in his finding a verdict; and that his mind was not entirely free from some bias or prejudice. The answers of the juror were no doubt made in candor, and correctly portrayed the condition of his mind. They showed that he was not impartial, and that his mind was not free from bias. The court did not err in sustaining the challenge.

2. The next is that the court erred in overruling a challenge made by plaintiff in error to A. B. Taylor, a proposed juror. His examination shows that he was not acquainted with either of the parties to the suit, and that he had no opinion as to which party should prevail, and that he did not feel any bias in his mind one way or the other with reference to the case. He was then asked by counsel for plaintiff in error whether he had any prejudice against the counsel for plaintiff in error. His answer was, he had not. He subsequently stated in answer to the attorney that he “did not particularly like” him “as a man;” but that notwithstanding any difficulty he might have had with the attorney he thought he could render a fair and impartial verdict, unbiased by anything that had transpired. He was asked whether or not he had made threats of violence against the attorney, and whether he had a perfectly friendly feeling towards him in the case. To these two questions objection was made by counsel for defendant in error, which was sustained, and which ruling is now assigned for error. Assuming, for the purposes of the case, that the inquiry was entirely legitimate, we cannot see that the juror was incompetent to sit in the case. He testified, in substance, that while he did not particularly like the attorney as a man, yet this personal feeling would not prevent him from rendering a fair and impartial verdict in the case. As to whether he felt “perfectly friendly” to counsel, “as an attorney in the case, or whether he had” at one time or another “made threats of personal violence,” were not material matters of inquiry; but we are not aware of any law which would render the juror incompetent by reason of an aversion to counsel employed in the case on trial, and none has been cited. We cannot hold that the ruling was erroneous.

3. “The court erred in overruling the objection of the plaintiff in error to the complaining witness bringing her child in view of the jury while testifying.” Upon this point the record shows that the complaining witness was called, and being about to take the witness stand with the child in question in her arms, counsel for plaintiff in error objected “to the complaining witness bringing her child before the jury. Overruled, and exception, and said child was brought into plain view of the jury, and kept there while complaining witness gave her testimony.” As to whether anything was said about the child during the trial or not the record is entirely silent, except that she was its mother and plaintiff was its father. It was conceded on the argument in this court that no reference was made to it, either during the introduction of the testimony or argument of the case, by way of comparison to plaintiff in error, and nothing is shown by which it appears that any conclusion was drawn, or sought to be drawn, from the features or appearance of the child. It must be apparent to any mind that the mere presence of the child could have no prejudicial effect upon the rights of plaintiff in error. A number of authorities are cited which hold that it is improper to introduce or present a child to a jury for the purpose of permitting the jury to draw conclusions as to its paternity from a supposed resemblance to the alleged father, unless, by a difference in color, or some other marked characteristic, the resemblance or want thereof can be clearly shown. But that is not this case. There was nothing claimed by defendant in error of the kind suggested. The only thing objected to was the presence of the child. Whether the attention of the jury would have been called to its presence had it not been done by plaintiff in error is, of course, a matter of surmise only; but as the age of the child was only about seven months, and nothing was claimed or said as to any resemblance, it is clear the case does not fall within the rule laid down by the cases cited.

4. Section 5 of chapter 37 of the Compiled Statutes provides, in substance, that when a party charged with being the father of an illegitimate child is held upon such charge to answer thereto before the district court, pleads not guilty to the charge before the district court to which he is recognized, the court shall order the issue to be tried by a jury. In the case at bar the jury was impaneled on Saturday evening, when the court was adjourned until the next Monday. At that time the parties and all the jurors appeared in court for the purpose of proceeding with the trial. The complaining witness was sworn, and took the witness stand. Plaintiff in error then objected to any evidence being given in the case, for the reason that no issues were formed by plea or otherwise, no plea of guilty or not guilty having been entered; whereupon the court required plaintiff in error to plead to the charge, whether guilty or not guilty. Saving to himself the objection to the order of the court, he entered a plea of not guilty, and the trial proceeded. It is claimed that this was an irregularity amounting to a mistrial. A number of authorities are cited, and with which the reports of criminal trials abound, to the effect that a trial in a criminal cause without a plea to the indictment, information, or complaint is a mistrial,--in fact, no trial of an issue at all; and that such a proceeding is simply nugatory. But without stopping here to inquire what the effect of such a proceeding in a case of this kind would be, it being a civil action, and not a criminal one, (Cottrell v. State, 9 Neb. 125;S. C. 1 N. W. Rep. 1008;Jones v. State, 14 Neb. 210;S. C. 14 N. W. Rep. 901,) we do not hesitate to hold that the irregularity spoken of was without any prejudice to the rights of plaintiff in error, and the...