Johnson v. State

Decision Date23 September 1898
Citation55 Neb. 781,76 N.W. 427
PartiesJOHNSON v. STATE.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

To sustain a finding of guilty in the trial of a bastardy case in the district court of the proper county, it is necessary to show by the evidence that the mother, at the time of the birth of the alleged bastard, was an unmarried person.

Error to district court, Webster county; Beall, Judge.

David E. Johnson was convicted of bastardy, and brings error. Reversed.Randolph McNitt, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for defendant in error.

RYAN, C.

Before the county judge of Webster county, Lillie Churches, an unmarried woman, on April 20, 1897, made complaint under oath that she was pregnant with a child, which, if born alive, would be a bastard, and that David E. Johnson was the father of said child. Upon a hearing the said Johnson was required to give bonds for his appearance at the next ensuing term of the district court, which he did, and upon a trial therein had was found guilty. The only question argued is as to the necessity of proving that at the time of the birth of her child Lillie Churches was an unmarried woman. She testified as to her age, and that the defendant was the father of the infant, following which testimony the bill of exceptions contains this language: Q. You may tell the court where and under what circumstances the child was begotten. A. It was over in brother's shed. Q. Where was you? A. I went over there to milk. Q. And he came to you? A. Yes, sir. Q. And had intercourse with you? A. Yes, sir. Q. When was that? A. About the 26th of September, 1896. Q. And when was this child born? A. June 11, 1897. Q. Where is Mr. Johnson now; do you know? A. No, sir; I do not. Q. You were an unmarried woman at the time this occurred? A. Yes, sir. Q. Living where? With your parents? A. Yes, sir. Q. And you were about nineteen years old at that time, or a little less? A. A little less than nineteen.” The trial took place on January 10, 1898, and the witness testified that she was 20 years of age on October 17, 1897. It is not clear what occurrence was referred to when she stated what was her age, unless we take into account her statement that at the time of said occurrence she was less than 19 years of age. As the birth of the child was when she had nearly reached the age of 20, it is quite clear that the occurrence she testified concerning was the act of coition. There was, therefore, no evidence as to whether or not she was a married person when her child was born. Under this condition of the evidence, what rule is applicable? Plaintiff in error, to sustain the proposition that the complainant must, at the time of the birth of the child, be unmarried, cites People v. Volksdorf, 112 Ill. 292, and Haworth v. Gill, 30 Ohio St. 627. In the first of these two cases the mother was unmarried when the child was born, but married subsequently, and it was held that this fact did not disqualify her to make the complaint upon which the reputed father was tried. In Haworth v. Gill, supra, it was held incompetent to prove nonintercourse between married persons with the view of letting in evidence which rendered it probable that the accused was the father of a child whose mother had procured a divorce from the husband before the child was born. It will be readily seen that these cases afford no light with respect to our present inquiry. By chapter 37, Comp. St., it is...

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