Masters v. Marsh

• Decision Date: 07 April 1886
• Citation: 19 Neb. 458,27 N.W. 438
• Parties: MASTERS v. MARSH.
• Court: Nebraska Supreme Court

19 Neb. 458

27 N.W. 438

MASTERS

v.MARSH.

Supreme Court of Nebraska.

Filed April 7, 1886.

Error from Fillmore county.

J. W. Eller, for plaintiff.

John P. Maule, for defendant.

COBB, J.

The plaintiff in error was tried on the complaint of Ellen A. Marsh, found guilty by the verdict of a jury, and adjudged to be the reputed father of the bastard child of said Ellen, and to stand charged with the maintenance of said child in the sum of $500, and to pay the costs of suit. To the proceedings in the trial court he assigns 16 errors.

The first assignment is that the court erred in sustaining the objection of counsel for the complainant to the following question, put to the complaining witness upon her cross-examination: “ Question. Did you not state in your examination before Mr. DIMOCK, justice of the peace, that it was in the latter part of November that you went and looked at the book to see the date the lard was bought?” The third and fourth errors assigned are for sustaining the objections of counsel for complainant to questions of the same character put to the same witness, all referring to her statements made before the examining magistrate, when on oath upon her original examination. These three assignments may, then, be considered together. The sole object of asking these questions was to obtain from the witness either an admission or denial that she had made such statements in her examination before the magistrate. In ordinary cases, such cross-examination, for such purposes, is doubtless admissible; but in bastardy cases, the reason or necessity for such examination does not exist. Section 1, c. 37, Comp. St., provides that upon the arrest of any person accused of being the father of a bastard child the justice “shall examine the complainant under oath respecting the cause of her complaint, and such accused person shall be allowed to ask the complainant, when under oath, any question he may think necessary for his justification; all of which questions and answers, together with every other part of the examination, shall be reduced to writing by the justice of the peace,” etc. Section 5 of the same chapter provides that “at the trial of such issue the examination before the justice shall be given in evidence,” etc. It appears from the record that this course was pursued in the case at bar, and the testimony of the complaining witness, as given before the magistrate, having been taken down in writing and produced on the trial, it would have been a waste of time, to say the most of it, on the part of the court, to have permitted the defendant's counsel to cross-examine the complainant as to what she testified before the magistrate. If her statements before the jury were inconsistent with those made before the magistrate, such inconsistency would furnish a fair ground for invalidating her testimony, and of attacking her credit before the jury, and no cross-examination was necessary for that purpose.

The second error assigned is the sustaining by the court of the objection by counsel for the complainant to the following question, put to the complaining witness on her cross-examination by defendant's counsel: “ Question. Didn't you have intercourse with Tot Conner there in that house, about that time?” By a reference to the context it appears that the house referred to was Roper's restaurant or eating-house at Geneva, and the time referred to was the time of the county fair, “about two years ago.” The trial took place on the sixth day of November, 1884. The child was born on the seventh day of June, 1884. It is conceded, and must be, that the defendant may show by the complainant, or any other witness, that she had intercourse with any man, other than the defendant, at or about the time when the child must have been begotten, according to the usual course of nature. The period of gestation may be safely stated, as a general proposition, at from 252 to 285 days. Allowing the greatest latitude of inquiry, I think it should be confined to a period of time between the lowest period of time above stated and that of 300 days before the birth of the child. The time referred to by the question which we are now considering,--“about two years ago,”--two years before the sixth day of November, 1884, was about 19 months before the birth of the child. If the prosecutrix had admitted that she had intercourse with the person named, at that time, it would have had no tendency to disprove the charge that the defendant was the father of her child.

The third, fourth, and fifth assignments of error fall within the above facts and reasoning, and hence need not be specifically stated.

The above remarks will also apply to the tenth assignment of error. Under this head counsel groups five questions put to the witness Walters, to the giving of which, the court sustained the objection on the part of the complainant that the same were irrelevant and immaterial, the time not being fixed. The purport of all these questions is whether the witness had seen the prosecuting witness, together with a young man named Tot Conner, in the night-time, go into an unoccupied house in the village of Exeter. In no instance was the time fixed, so that any answer indicated by the frame of the question would have been material, or tended to prove any fact disproving the charge that defendant is the father of the child. In this connection it is proper to say that this witness, John Walters, was a witness called on the part of the defendant. It may be said to be the settled law of this state that in order to predicate error upon the sustaining by the court of an objection to the question propounded to a party's own witness, the party must make an offer to prove the fact or facts sought to be elicited by the question. See Matthews v. State, 27 N. W. Rep. 234. This rule seems to have been lost sight of by counsel, as it was especially applicable to the questions which we are now examining. Even had the time been fixed when the questions suppose the prosecuting witness may have been seen entering the unoccupied house with the young man named to be at or about nine lunar months before the birth of the child, the facts indicated by the question, unaccompanied by other facts, would have been of but little, if any, value as casting doubt upon the parentage of the child; while, if followed by an offer to prove other and additional facts,--such as their being alone, the length of their stay, etc.,--they might have been of considerable value.

The sixth error is “that the court erred in sustaining the objection to the following question, asked of Charlotte I. Marsh, mother of plaintiff, on her cross-examination: “ Question. Did you not know of her (Ellen, the plaintiff) having an abortion before she was in the family way with this child?” This witness had testified to nothing in her examination in chief upon which the above question...