Kremling v. Lallman

• Decision Date: 26 August 1884
• Citation: 20 N.W. 383,16 Neb. 280
• Parties: HENRY KREMLING, PLAINTIFF IN ERROR, v. ANNIE LALLMAN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 383

16 Neb. 280

HENRY KREMLING, PLAINTIFF IN ERROR, v. ANNIE LALLMAN, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 26, 1884

ERROR to the district court for Washington county. Tried below before NEVILLE, J.

AFFIRMED.

Osborn & Farnsworth, for plaintiff in error, cited: Hull v State, 2 N. W. R., 175. Zweifel v. State, 27 Wis. 399. Cottrell v. State, 9 Neb. 125.

W. J Connell and Ballard & Walton, for defendant in error, cited Jones v. State, 14 Neb. 210. State v. Nichols, 13 N. W. R., 153. State v. McGlothlen, 9 Id., 883. Ex parte Cottrell, 13 Neb. 193.

OPINION

COBB, CH. J.

This was a complaint, trial, and conviction under the provisions of chapter 37 of the Compiled Statutes, entitled "Illegitimate Children." The defendant brings the cause to this court on error, and assigns five grounds of error, which will be stated and disposed of in their order.

1. The court erred in refusing to allow the plaintiff in error peremptory challenges of jurors as provided by law in criminal cases.

The case of Cottrell v. The State, 9 Neb. 125, 1 N.W. 1008, was originally prosecuted in the name of the state. This fact, which the defendant therein assumed to characterize the case as a criminal one, was presented to this court as a ground of error. In disposing of the point thus presented, the court in the opinion, after citing the Ohio cases say: "It will be seen that a very large proportion of the reported cases have not been prosecuted in the name of the state. And being essentially a civil action, the better course is to conduct the prosecution in the name of the real party in interest. But in such case the state is a mere trustee, and the real party in interest obtains the benefit of the judgment; the object of the action being merely to enforce the discharge of a civil and moral obligation, that of support, by a father of his own child." And again, "The statute does not aim to punish the putative father, but merely requires him to perform the duty required of every man who becomes the father of a child--to provide for its support." We adhere to this opinion, which we had hoped had settled the law in this state in regard to this class of actions on the same basis as it has long been settled in Ohio.

There is much force in the position taken by counsel for plaintiff in error in respect to the similarity of the imprisonment, often resorted to in this class of cases for the purpose of enforcing a compliance with the order of the court, to punishment for crime. But it must not be forgotten that a punishment often follows the unwise indulgence of the passions scarcely distinguishable from that inflicted for crime.

2. The court erred in permitting counsel for the prosecution to compel the plaintiff in error to answer that sexual intercourse had taken place at a time not named in the complaint or near enough to said date to fix the paternity of the child upon the plaintiff in error, etc.

On this point it will be sufficient to say, that the cross-examination covered precisely the same period of time as that covered by the examination in chief. His own counsel put to him the question, "State if you had anything to do with this woman in the months of June, July, August, September, October, or up to the first of November?" This question he answered, and upon the strictest rules was subject to cross-examination to the same extent, and it was not exceeded.

3. The court erred in refusing to set aside the verdict of the jury as not being sustained by sufficient evidence and being contrary to the law and the evidence.

A thorough examination of the testimony leads me, and no doubt led the jury, to...