State ex rel. Bales v. Baker

• Decision Date: 07 June 1902
• Citation: 69 P. 170,65 Kan. 117
• Parties: STATE ex rel. BALES v. BAKER.
• Court: Kansas Supreme Court

69 P. 170

65 Kan. 117

STATE ex rel. BALES v. BAKER.

Supreme Court of Kansas, First Division

June 7, 1902

Syllabus by the Court.

1. The prosecutrix in a bastardy proceeding, although a minor, may at any time before final judgment, and without the consent of the county attorney or other person, dismiss the proceeding if she shall enter of record an admission that provision for the maintenance of the child has been made to her satisfaction.

2. Such admission and dismissal, if obtained without deception or fraud, is binding upon the prosecutrix and the state, and is an effectual bar to another prosecution for the same cause and purpose.

Error from district court, Sedgwick county; D. M. Dale, Judge.

Action by the state, on the relation of Nellie Bales, against Albert Baker. Judgment for defendant, and plaintiff brings error. Affirmed.

James F. Conly, Co. Atty., and Amidon & Conly, for plaintiff in error.

T. B Wall, for defendant in error.

Argued before DOSTER, C. J., and JOHNSTON, CUNNINGHAM, and ELLIS JJ.

OPINION

JOHNSTON, J.

On December 17, 1898, Nellie Bales instituted a bastardy proceeding in the name of the state against Albert Baker before a justice of the peace of Sedgwick county. Baker was arrested and brought before the justice, and upon payment of $80, which was accepted by the prosecutrix, she acknowledged that provision for the maintenance of the bastard child had been made to her satisfaction; and that admission was formally entered upon the docket of the justice, and the prosecution dismissed. After the settlement and discharge, and on July 1, 1899, a second prosecution was begun by the prosecutrix against Baker in the Wichita city court, in which the county attorney participated, and the defendant was recognized to appear at the next term of the district court for trial. In the district court the defendant set up the first proceeding and discharge as a bar to the maintenance of the second. The state, in reply, admitted the institution of the first prosecution, the payment of the money by the defendant, the acknowledgment, of the prosecutrix of satisfactory payment, and that her admission had been entered of record in the docket of the justice; but it was alleged that the county attorney did not participate in that prosecution, and did not consent to the discharge of the defendant. It was also alleged that at the time of the discharge the prosecutrix was a minor of the age of 17 years, and that after she became 18 years of age she disaffirmed her action in the first proceeding, and immediately brought the second one. The defendant moved for judgment in his favor on the pleadings, which motion was allowed, and the defendant discharged.

The question presented for determination in this review is whether the first prosecution, the admission by the prosecutrix that satisfactory provision had been made for the maintenance of the child, and the entry of record of the admission, together with the discharge of the defendant, is a bar to further prosecutions. The statute provides that "The prosecuting witness may at any time before final judgment dismiss such suit, if she shall enter of record an admission that provision for the maintenance of the child has been made to her satisfaction. Such entry shall be a bar to all other prosecutions for the same cause and purpose." Gen. St. 1901, § 3335. It is conceded that, under the provision quoted, the first prosecution, the record admission of the prosecutrix, and the discharge of the defendant constitute an effectual bar to this prosecution, unless the absence of the county attorney and the minority of the prosecutrix save it from the bar. The contention on behalf of the state is that under the general provisions of the statute the contract or release of a minor is not binding if it is disaffirmed after majority is reached, and that the, entry of satisfaction by a minor oughtnot to bind the state, since neither the county attorney, nor any officer of the state, consented to the steps taken in the first proceeding. It will be observed that the bastardy proceeding is wholly statutory, and in the statute we must find the solution of the questions raised by the state. As has...