Parker v. Nothomb
| Decision Date | 01 July 1902 |
| Docket Number | 11,908 |
| Citation | 91 N.W. 395,65 Neb. 308 |
| Parties | LUCY PARKER v. MICHAEL J. NOTHOMB. [*] |
| Court | Nebraska Supreme Court |
ERROR from the district court for Seward county. Action by Lucy Parker, nee Lucy West, against Michael J. Nothomb for bastardy. Tried below before SORNBORGER, J. Reversed.
The complaint herein made was filed after the marriage of the prosecutrix to one Parker; and the question at issue was whether or not the prosecutrix should be unmarried when she made the complaint as well as when she bore the child. The briefs were full and instructive. But the question is so thoroughly discussed by the learned commissioner that an abstract of the briefs is deemed superfluous.
REVERSED AND REMANDED.
Abbott & Abbott, T. B. Parker and D. C. McKillip, for plaintiff in error.
T. L Norval, Richard S. Norval, B. F. Norval and M. D. Carey contra.
HASTINGS C. DAY and KIRKPATRICK, CC. concur.
Only one question is presented in this case,--the construction to be placed upon the opening clause in section 1 of chapter 37, Complied Statutes, relating to illegitimate children. The provision is "that on complaint made to any justice of the peace in this state by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or being pregnant with a child which, if born alive, may be a bastard, accusing on oath or affirmation any person of being the father of said child, the justice shall," etc. The complaining witness made the following complaint: "On this 2d day of April A. D. 1900 Lucy Parker formerly Lucy West, a resident of Seward county, Nebraska, personally appeared before me, J. J. Thomas, county judge in and for Seward county and state of Nebraska, who being by me first duly sworn on her oath says that she is now a married woman but at the time of the birth of the child hereinafter set forth and at the time the same was conceived was an unmarried woman and resident of said county and state, and that she was on the 29th day of April, 1897, delivered of a male bastard child and that said child is now living and affiant further says that Michael Nothomb, name otherwise unknown is the father of said child, and further affiant sayeth not."
Examination was held and defendant gave bail for his appearance in district court. There he pleaded "Not guilty." A jury was impaneled. Objection was then made to the introduction of any evidence on the ground that the complaint stated no cause of action. This was sustained, and by instruction of the court a verdict of not guilty returned. Motion for new trial was overruled, and error is brought to reverse the judgment of dismissal.
The sole question is whether "unmarried," in the statute, relates forward to the following clauses, or back to the complaint. Must it be the complaint of a woman unmarried at the time of making it, or merely the complaint of a woman unmarried when delivered of a bastard child or pregnant with one? It is held in Johnson v. State, 55 Neb. 781, 76 N.W. 427, that the complainant at the time of the birth of the child must be an unmarried woman, and that the evidence must affirmatively show it. Her status at that time fixes that of her offspring. If she was then a married woman her child will not be a bastard. It is held in Myers v. Baughman, 61 Neb. 818, 820, 86 N.W. 507, that the purpose of the statute is twofold: To require the putative father to support his offspring, and to protect the county in which the child is born. Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382, and Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174, are cited, and are to the same effect.
That the marriage of the mother after the status of her illegitimate child is fixed should be made to relieve its father of all responsibility, is clearly against the general intention and object of this statute. Her husband, by the mere fact of marriage, would not be under any obligation to support the child. Schouler, Domestic Relations, sec. 273; Mowbry v. Mowbry, 64 Ill. 383.
It is claimed that this statute is penal, and its provisions should be strictly construed. Such a holding is not in conformity with the rulings of this court. In Stoppert v. Nierle, supra, it is held that the number of challenges allowed in the selection of the jury are those provided in civil actions, and not those in criminal proceedings. It has also been frequently held that a mere preponderance of the evidence is all that is necessary to uphold a verdict of guilty in these cases. Robb v. Hewitt, 39 Neb. 217, 58 N.W. 88. A provision for the maintenance of helpless children otherwise without claim upon any one but the mother, is certainly remedial in its nature, and, it would seem, should be construed as a remedial statute.
The industry of counsel has brought together the adjudications upon this subject. The holdings, where the question has been directly raised in courts of last resort, seem to be uniformly to the effect that the provision of the statute has relation to the status of the mother at the time of the conception and delivery of the child, and not at the time of the making of the complaint.
In England, under a provision that a "single woman" may make a complaint, it is held that a woman living without access of the husband answers to the description. Regina v. Pilkington, 2 El. & Bl. [Eng.] 546; Regina v. Collingwood, 12 Q.B. [Eng.] 681; Rex v. Luffe, 8 East [Eng.] 193.
In Illinois, under a statute identical in meaning, and almost so in form, with ours, in People v. Volksdorf, 112 Ill. 292, the precise case here was held to entitle the complainant to proceed; and the opposite holding of the appellate court in the same case, in 12 Bradwell 534, was reversed.
In Vermont, under a statute as follows: "That when any single woman shall be delivered of any bastard child, or shall declare herself to be with child, and such child is liable to be born a bastard, and shall in either case, charge any person, in writing or on oath," etc. it was held that it was competent to proceed in the name of the woman under a complaint almost identical in terms with the one that we have here, although in that case the action was carried on jointly by the complainant and the town. Sisco v. Harmon, 9 Vt. 129.
The court, both in Illinois and in Vermont, holds that the provision as to the status of the complainant, has reference only to the time when her child is conceived and born.
In North Carolina, under a statute like that of Vermont, a woman who was unmarried at the time of the birth of two children, after marriage to another party, entered bastardy proceedings against the father; and the court held that she was entitled to carry them on,--making the same holding as in Vermont as to when the requirement that she be a single woman should be held to have application. Wilkie v. West, 5 N.C. 319, 1 Mur. 319.
These are all the cases which counsel's industry has brought forth where courts of last resort have passed upon...
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