In re Lee

Decision Date05 April 1889
Citation21 P. 282,41 Kan. 318
PartiesIn the matter of the Petition of NEWTON H. LEE for a Writ of Habeas Corpus
CourtKansas Supreme Court
Original Proceeding in Habeas Corpus.

THE material facts appear in the opinion, filed at the session of the court in April, 1889.

Petitioner remanded to custody of sheriff of Riley county.

R. C Heizer, and J. T. Pringle, for petitioner.

Frank L. Irish, contra.

JOHNSTON J. All the Justices concurring.



Upon a writ of habeas corpus granted by this court and directed to the sheriff of Riley county, he returned as the cause for the detention of the petitioner a commitment issued by a justice of the peace of Riley county, reciting that Newton H. Lee had been arrested and brought before him upon a warrant issued by him on a complaint of bastardy made against Lee by Mary Thomas, an unmarried woman and a resident of Riley county; that Mary Thomas was examined in the presence of Lee, and such proceedings were had that Lee was ordered to enter into a recognizance, with security, in the sum of $ 300, for his appearance at the next term of the district court of Riley county, to answer the charge of bastardy preferred against him; and that Lee having refused and neglected to enter into a recognizance, the sheriff was directed to receive him into custody in the jail of the county, there to remain until he was discharged by due course of law.

When Lee was arrested and brought before the justice of the peace he objected to any further proceedings being taken, asserting that the court had no jurisdiction over the subject-matter of the suit or of the person of the defendant, for the reason that the warrant was served upon him, and he was arrested by virtue thereof in the county of Osage, and not in the county of Riley, where the proceeding was begun and the warrant issued. For the same reason he now urges that his restraint is illegal, alleging that at the time of his arrest he was in Osage and not in Riley county, and that the justice of the peace acquired no jurisdiction or authority over him by virtue of a service of the warrant outside of Riley county. The jurisdiction of the justice of the peace and the legality of the petitioner's restraint must be ascertained from the bastardy act, and the nature of the proceeding there authorized. (Comp. Laws of 1885, ch. 47.) If it is a civil action it must be brought in the county where the defendant resides or may be summoned; and if it is a criminal proceeding to inflict punishment upon persons committing crimes, the jurisdiction would be in the county where the crime was committed, but the warrant might go to and be served in any part of the state. But it is not strictly either a civil or a criminal proceeding, although its form and incidents partake somewhat of the nature of both. It is a police regulation, not for the punishment of crime, but requiring the putative father to provide maintenance and education for his offspring, and thus provide for the child, relieve its mother, and indemnify the public for the possible burden of its support. (Willetts v Jeffries, 5 Kan. 470; Jackson v. The State, 30 id. 88; Gleason v. Comm'rs of McPherson Co., 30 id. 492; In re Wheeler, 34 id. 96.) The action has many of the characteristics of a criminal proceeding. It is denominated a "prosecution," which is brought in the name of the state, based on a complaint upon which a warrant is issued. Under this warrant the person charged is arrested and brought before a justice of the peace, and the hearing had before him is called a "preliminary examination." The complainant is termed a "prosecuting witness," and the county attorney is required to conduct the prosecution. If the defendant is adjudged by the justice of the peace to be the father of the child, he is required to give a recognizance, conditioned that he will appear in the district court; and failing in this, he is committed to jail. If he fails to comply with the final judgment of the district court, he may be imprisoned in the jail of the county. Although the purpose of the action is not to punish the father, it will be seen that it has many of the features and incidents of a criminal prosecution. Other provisions of the act, however, are entirely inconsistent with criminal procedure. It is expressly provided that the rules of evidence and the competency of witnesses shall be the same as in civil cases. The mother may at any time before final...

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9 cases
  • In re The Application of William Bolman for A Writ of Habeas Corpus
    • United States
    • Kansas Supreme Court
    • November 8, 1930
  • State v. Brandner
    • United States
    • North Dakota Supreme Court
    • March 22, 1911
    ...and Wishek & Shubeck, for respondent. Bastardy proceeding is neither civil nor criminal, but partakes of the character of both. Re Lee, 41 Kan. 318, 21 P. 282; v. Scott, 7 S.D. 619, 65 N.W. 31; Clark v. Carey, 41 Neb. 780, 60 N.W. 78, 9 Am. Crim. Rep. 117; State v. Lang, 19 N.D. 679, 125 N.......
  • State v. Lang
    • United States
    • North Dakota Supreme Court
    • March 4, 1910
    ...A bastardy proceeding is sui genesis, partaking of the features of both criminal and civil action. Clark v. State, 60 N.W. 78. In re Lee, 41 Kan. 318, 21 P. 282; Baker v. State, 56 Wis. 568, 14 N.W. 719; v. State, 73 Ala. 11; Holcomb v. People, 79 Ill. 409; Cummings v. Hodgson, 13 Metc. 246......
  • State ex rel. Feagins v. Conn
    • United States
    • Kansas Supreme Court
    • October 6, 1945
    ...See also Gleason, Sheriff, v. Com'rs of McPherson County, 30 Kan. 492, 2 P. 644; In re Wheeler, 34 Kan. 96, 8 P. 276; In re Lee, Petitioner, 41 Kan. 318, 21 P. 282; In re Bolman, 131 Kan. 593, 292 P. 790; and see 7 C.J. 697, § 58, 10 C.J.S., Bastards, p. 145, § 33. As we construe appellant'......
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