State v. Bunker
| Decision Date | 29 October 1895 |
| Parties | STATE v. BUNKER. |
| Court | South Dakota Supreme Court |
1. The provisions of chapter 24, Laws 1893, are not in conflict with sections 20, 21, art. 5, State Const. State v. Scott (S. D.) 65 N. W. 31.
2. Proceedings in bastardy cases are properly instituted and carried on in the name of the state.
3. On the trial of bastardy cases under the statute, it is sufficient for the state to prove its case by a preponderance of evidence.
4. The failure of the defendant to enter a plea in the action does not constitute reversible error, he having been deprived of no rights on the trial that he would have been entitled to had a formal plea been entered.
Error to Brown county court; J. E. Adams, Judge.
Ernest I. Bunker, having been convicted of bastardy, brings error. Affirmed.L. W. Crofoot, for plaintiff in error. Coe I. Crawford, Atty. Gen., and George W. Jenkins, for the State.
This was a prosecution brought in the name of the state, on the relation of Amy Mabel Weed, against the defendant, under the bastardy act of 1893. The jury found the issues for the state, and the defendant brings the case here for review on writ of error.
The first question presented is the constitutionality of the law. It is contended by counsel for plaintiff in error that the law conferring jurisdiction upon county courts in this class of cases is unconstitutional. This question was presented and determined by this court at the present term, in the case of State v. Scott, 65 N. W. 31. That case was fully considered and discussed, and the court arrived at the conclusion that the bastardy act of 1893 was constitutional, and it is not necessary to again review this question. Ruled by that case, this point must be decided against the contention of the plaintiff in error.
It is next contended that, if we hold the law is so far criminal in its nature that county courts have jurisdiction, the law is an ex post facto law, and therefore not valid as against this defendant, as the birth of the child occurred less than nine months after the passage of the act of 1893. But the act of 1893 creates no new liability on the part of the defendant. His liability existed under sections 5560-5568, inclusive, c. 37 (Civil Procedure) Comp. Laws. The law as it formerly stood provided that the father of an illegitimate child might be compelled to provide for its support. The only material change made by chapter 24, Laws 1893, is as to the method of enforcing the defendant's liability; no new liability is created by that act. Ordinarily, the mere change in the method of procedure does not constitute such a change in the law as to make it an ex post facto law. Cooley, Const. Lim. 272, and cases there cited; Gut v. State, 9 Wall. 35; Ex parte McCardle, 7 Wall. 506;Com. v. Holley, 3 Gray, 458;Jacquins v. Com., 9 Cush. 279. See, also, dissenting opinion in Kring v. Missouri, 107 U. S. 236, 2 Sup. Ct. 443. But it may be sufficient to say that the bastardy act is not a criminal statute. It is, as we held in the case of State v. Scott, supra, quasi criminal. Or, perhaps, more properly speaking, it is a special proceeding to compel the father to provide for the support of his illegitimate child. The proceedings are criminal in form, but the trial is in its nature that of a civil action. It is further contended that the action should have been instituted in the name of Amy Mabel Weed, and not in the name of the state, as said Amy Mabel Weed is the real party in interest. But we cannot agree with counsel in this contention. The law in force when the act of 1893 was passed provided in terms that the action should be prosecuted in the name of the state. Comp. Laws, § 5560. The repealing clause of the act of 1893 only repeals all acts and parts of acts in conflict therewith. The provision above referred to does not conflict with any of the provisions of the act of 1893, but that act seems to have been adopted upon the theory, and contemplates, that the proceedings shall be in the name of the state.
Counsel for the plaintiff in error further contends that the court erred in sustaining the objections of the counsel for the state to certain questions propounded to the complaining witness on cross-examination. The principal question objected to and excluded is as follows: “Now, when you left here to go to Madison, South Dakota, Mr. Allrenshaw bought you, and gave you, your ticket?” This was objected to as incompetent and immaterial, and not proper cross-examination. The objection was sustained. We think the court's ruling can be sustained, for the reason that the witness, in her examination in chief, had not been asked any question by the state's attorney in any manner relating to Allrenshaw, or in regard to her going to Madison, and the question, therefore, called for no matter about which she had given evidence in her direct examination. She was asked other similar questions, which were objected to and excluded. We see no legal objection to the rulings of the court in excluding these questions. As before stated, nothing in regard to her connection with Allrenshaw, or as to the matter of her going to Madison, had been called out in the direct examination, and the defendant, therefore, had no absolute legal right to interrogate her upon that subject. The admission or exclusion of the question was largely within the sound judicial discretion of the trial court, and its rulings upon the question will not be reviewed by this court, unless there has been an abuse of such discretion. Rice, Ev. p. 595; Rea v. Missouri, 17 Wall. 532.
It is next contended that the objection of the defendant to a question propounded to the witness Allrenshaw by the state's attorney should have been sustained. The witness, on his direct examination, had testified that he had improper relations with the complaining witness at about the time the defendant had, as testified to by the plaintiff's witness. He was then asked: “Did you ever deny to anybody that you ever had intercourse with her?” This question was objected to by counsel for plaintiff in error as incompetent, irrelevant, and immaterial, and for the reason that the question does not call the witness' attention to time, place, etc. The question evidently was not asked with the view of...
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