Robb v. Hewitt

• Decision Date: 06 February 1894
• Citation: 58 N.W. 88,39 Neb. 217
• Parties: ROBB v. HEWITT.
• Court: Nebraska Supreme Court

39 Neb. 217

58 N.W. 88

ROBB

v.HEWITT.

Supreme Court of Nebraska.

Feb. 6, 1894.

Syllabus by the Court.

1. The complaint in a bastardy proceeding, where it charges the date of the birth of the child, need not set out the time or place when or where it was begotten.

2. An offer made by the defendant to the father of the prosecutrix, to contribute money for the purpose of “sending the prosecutrix away,” is not an offer to compromise, and is admissible in evidence.

3. In a bastardy proceeding, only a preponderance of the evidence is necessary to a conviction, and a verdict may be sustained upon the uncorroborated testimony of the prosecutrix alone.

4. Certain evidence in rebuttal of evidence of good reputation examined, and its admission held not to be error.

Error to district court, Otoe county; Chapman, Judge.

On the complaint of Clara E. Hewitt, Hamilton M. Robb was convicted of bastardy, and brings error. Affirmed.John C. Watson, for plaintiff in error.

M. L. Hayward, for defendant in error.

IRVINE, C.

The defendant in error charged plaintiff in error with bastardy, and upon trial was found guilty.

1. The complaint, omitting the formal parts, is as follows: “That she is an unmarried woman, resident of Otoe county, in the state of Nebraska; that on the 16th day of October, 1889, she was delivered of a bastard female child; and that Hamilton Montgomery Robb is the father of said child.” The defendant moved the court to require the prosecutrix to make the complaint more certain, by averring the time and place where the child was begotten. This motion was overruled. The complaint is in a form which has in its support, at least, the sanction of custom, but its sufficiency has never been directly determined by this court. Were it not for the provisions of chapter 37, § 1, Comp. St., requiring, in such cases, an examination under oath of the prosecutrix, before the justice of the peace to whom complaint is made, there would be much force in the argument that the defendant should be informed by the complaint of the time and place of the alleged intercourse. But the section cited provides for such an examination, permits the accused to cross-examine, and requires that the examination shall be reduced to writing, and certified to the trial court, where it “shall be given in evidence.” These provisions furnish the accused with all requisite information, and we do not think the complaint need be more specific than the statute, in terms, requires.

2. The father of the prosecutrix was permitted to testify that at some time--not very definitely fixed, but apparently not long before the birth of the child--he told the defendant of the girl's condition, and asked him what he was going to do about it. Defendant denied the implied charge. In the course of the conversation the father remarked that, if he had a little money, he would send the girl away. Thereupon, the defendant asked the father to remain a short time, went away himself, and soon returned, saying, “What do you mean,--that you would send her away if you had a little money?” The father answered, “I meant just what I said.” Defendant said, “Do you mean if I would pay half, that you would pay half?” This testimony was objected to, and its admission is assigned as error; counsel invoking the rule which excludes, as privileged, offers to compromise. The rule referred to applies to this class of cases. Olson v. Peterson, 33 Neb. 358, 50 N. W. 155. It is a salutary rule, and should be rigidly enforced; but this evidence did not fall within it. There was no offer to compromise, but merely a suggestion that defendant would share the expense of sending the girl away. The rule arises from the policy of the law, which favors amicable settlements, but does not extend to offers made, which, if accepted, would merely baffle...