State v. Flynn

Decision Date01 May 1923
PartiesSTATE v. FLYNN.
CourtWisconsin Supreme Court


Error to Circuit Court, Oconto County; William B. Quinlan, Judge.

Martin Elliott Flynn applied for writ of habeas corpus, and at a hearing was discharged from custody, and the State brings error. Order discharging petitioner reversed, and cause remanded.

Habeas corpus. The defendant was arrested upon the complaint of Clarissa Beardsley, charging him with being the father of her child born June 27, 1922. It appears from the evidence taken at the preliminary examination that the complainant was a girl 18 years of age at the time of the alleged intercourse, residing in the county of Oconto; that the child was conceived some time in the month of September or October, 1921; that thereafter, and on the 8th day of January, 1922, the complainant went to the city of Chicago, Ill., for the purpose of making it her permanent residence; that on January 14, 1922, she was married to Lawrence Beardsley, who went to Chicago in August, 1922; that on or about the 27th day of June, 1922, Beardsley deserted her. She testified that she had never had intercourse with Beardsley prior to her marriage to him. It further appears that at the time of the preliminary examination she intended to return to the city of Chicago, her permanent home.

No action of divorce has been begun nor is contemplated. The complainant returned to the state of Wisconsin for the express purpose of prosecuting this proceeding. Upon the preliminary examination, the magistrate held that there was probable cause to believe the accused guilty and bound him over to the next term of the circuit court of Oconto county, and caused him to be committed to the county jail of that county pending trial. A writ of habeas corpus was sued out in his behalf, and at the hearing thereon the court discharged the defendant from custody. This writ is prosecuted on behalf of the state of Wisconsin to review the proceeding so had.

Eschweiler, J., dissenting. Owen, J., dissenting in part.H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Irving Breakstone, Dist. Atty., of Oconto (Fairchild, North, Parker & Bie and Samuel D. Hastings, all of Green Bay, of counsel), for the State.

Classon & O'Kelliher, of Oconto, for defendant in error.

ROSENBERRY, J. (after stating the facts as above).

Three questions are presented for consideration here: (1) May a nonresident prosecute a statutory action for bastardy against a resident of this state? (2) Can a married woman prosecute the action under our statute? (3) Was the magistrate without jurisdiction to hold the defendant for trial, there being no evidence before him except that given by the complainant, it appearing that the complainant was at the time of the examination, and now is, a married woman, and that the child was born in wedlock?

Upon the first proposition there is a considerable conflict of authority due to the wording of the various statutes of the jurisdictions in which the question has been determined, and also to the view the courts of the several jurisdictions take of the nature and purpose of the proceeding. Where the courts adhere to the view that the proceeding is one designed primarily to relieve the public of the probable burden of supporting a bastard child, and that it is prosecuted mainly in the public interest, it is held that the action may not be prosecuted by a nonresident. Sutfin v. People, 43 Mich. 37, 4 N. W. 509;State v. Bowdle (Del.) 83 Atl. 1084;Graham v. Monsergh, 22 Vt. 543; Richardson v. Burlington, 33 N. J. Law, 190.

On the other hand, where the courts take the view that the proceeding is primarily to compel the father to aid the mother in supporting the child and so as to enforce the father's natural obligation, it is held that the action may be prosecuted by a nonresident. McGary v. Bevington, 41 Ohio St. 280;Commonwealth v. Dornes, 239 Mass. 592, 132 N. E. 363;Roy v. Poulin, 105 Me. 411, 74 Atl. 923, 134 Am. St. Rep. 573, 18 Ann. Cas. 573;State v. Etter, 24 S. D. 636, 124 N. W. 957, 140 Am. St. Rep. 801;Moore v. State, 47 Kan. 772, 28 Pac. 1072, 17 L. R. A. 714;Kolbe v. People, 85 Ill. 336.

In Duffies v. State, 7 Wis. *672, this court had under consideration the nature of the proceeding under our statute and whether or not it could be maintained where the child was born without the state. It appeared in that case that the child was conceived in this state, born in the state of Illinois, where the mother remained for two years after its birth, and the proceeding was instituted after she returned. The court said:

“The obligation of the father to support a bastard child grows out of the paternal relation existing between him and such child; and we therefore deem it quite immaterial, so far as his obligation and duty are concerned, whether the child is born out of the state or not. The object of the statute is to save the public from the burden of supporting illegitimate children by compelling the father to provide for their maintenance. * * * The accident of the birthplace of such child ought not to be permitted to affect this general universal obligation growing out of the paternal relation. We are therefore unable to concur in the reasoning of the courts in Vermont, where it has been held that a bastard child, born out of the state, its mother at the time having no domicile in the state, cannot be affiliated, or its maintenance charged upon the father under the bastardy act.”

In a later case this court said:

“A bastardy proceeding has been held to be neither a civil nor a criminal action, but one depending wholly upon the terms of the statute authorizing it for the relief that may be afforded thereby. * * * It has also been held that, when instituted by the mother, it is a proceeding for her benefit and protection to enforce the father's natural obligation to support his child. Baker v. State [56 Wis. 568, 14 N. W. 718];Barry v. Niessen, 114 Wis. 256, 90 N. W. 166. So we see that whether the defendant's liability is founded upon a tort or upon a natural obligation, irrespective of blame, it is a liability primarily to the mother, and the remedy is given for her benefit. True, the state is remotely interested, for, if the father does not furnish support, it may be called upon to do so.” Smith v. State, 146 Wis. 111, 130 N. W. 894, 33 L. R. A. (N. S.) 463.

[1] Were the court not already committed to the proposition that the action may be maintained by a nonresident, we should be obliged to so hold because of the nature of the proceeding under our statute as indicated in Smith v. State, supra. Such also is the weight of authority.

[2] II. By section 1530, Wis. Stats., it is provided:

“On complaint being made to any justice of the peace by any female who shall be delivered of a bastard child or who shall be pregnant with a child which, if born alive, may be a bastard, accusing any person of being the father of such child the justice shall take such complaint in writing, under the oath of such female, and shall thereupon issue his warrant against the person accused, directed to the sheriff or any constable of his county, commanding him forthwith to bring such accused person before the justice to answer such complaint.”

The question of whether or not a married woman can prosecute the action would seem to be settled by Duffies v. State, 7 Wis. *672, and Mink v. State, 60 Wis. 583, 19 N. W. 445, 50 Am. Rep. 386. In each of those cases, the prosecutrix was a married woman at the time the affiliation proceedings were instituted. The language of our statute would scarcely permit of any other holding, it being expressly provided that any female may make the complaint. There are holdings to the contrary in other jurisdictions based upon the peculiar wording of the statutes in those jurisdictions.

III. It is contended by the defendant that the magistrate had no jurisdiction to hold him for trial for the reason that there was no competent evidence offered or received upon the trial to establish the allegations of the complaint. The prosecutrix was sworn upon the preliminary examination, and, if she is a competent witness to the facts testified to by her, there is ample evidence to sustain the finding and order of the magistrate. On behalf of the state it is urged that this question was not raised below, and that the defendant cannot raise it in this court for the first time.

[3][4] While a person may waive his right to raise the question as to whether or not the court has jurisdiction of the person, the rule is otherwise where it relates to the power or authority of the court to proceed. While the court here had jurisdiction of the statutory proceeding, it had no jurisdiction to bind the defendant over for trial, there being no waiver of the right to a preliminary examination, unless there was sufficient competent credible evidence to sustain the finding that there was probable cause to believe that the defendant was the father of the child. State ex rel. Durner v. Huegin, 110 Wis. 189, 237, 85 N. W. 1046, 62 L. R. A. 700.

The writ of habeas corpus issued in this case, and the relator here, J. W. Reynolds, sheriff of Oconto county, in whose custody the defendant then was, made his return to the writ. The record here does not show what proceedings were had upon the return or how its sufficiency was challenged. Apparently there was no traverse, and we assume that the matter was considered as if the petitioner had stood upon the return and moved for his discharge, thus challenging the sufficiency of the return. State ex rel. Hellige v. Milwaukee Liedertafel, 166 Wis. 277, 164 N. W. 1004.

The relator here asserts that, the petition for the writ not having alleged that the magistrate was without jurisdiction because of the fact that there was no evidence before him upon which the finding could be based, no inquiry can be had as to the sufficiency of the return for that reason.

[5] The nature of habeas...

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