State v. Herbert

Citation152 P. 667,96 Kan. 490
Decision Date06 November 1915
Docket Number19,474
PartiesTHE STATE OF KANSAS, ex rel. MARY AGNES WILLIAMS, Appellee, v. JAMES HERBERT, Jr., Appellant
CourtUnited States State Supreme Court of Kansas

Decided July, 1915.

Appeal from Barber district court; PRESTON B. GILLETT, judge.

Judgment affirmed.



1. ILLEGITIMATE CHILD--Amount Allowed for Its Maintenance within Judicial Discretion. The amount of payment to be required in a bastardy proceeding is such as to the trial court may seem just, after considering all the facts and circumstances, for securing the maintenance and education of the child. Held, that the order in this case does not appear to have been an abuse of discretion.

2. SAME--Defendant Not Entitled to Jury Trial. In a proceeding of this kind, the defendant is not entitled to a jury trial as a matter of right, and its denial was not error.

Samuel Griffin, of Medicine Lodge, J. W. Culwell, of Beaver, Okla., and Charles Swindall, of Woodward, Okla., for the appellant.

S. M. Brewster, attorney-general, and John L. Hunt, assistant attorney-general, for the appellee; A. L. Noble, of Winfield, of counsel.



The defendant appeals from a judgment rendered against him in a bastardy proceeding, and assigns error upon the amount of the payments required, alleging them to be excessive, and upon the ruling denying him a jury trial.

The trial court considered the age, education, property and environment of the defendant and concluded that $ 150 a year in quarterly payments, until the child should reach the age of eighteen years, was reasonable, and provided for a lump sum payment at any time at the option of the defendant. The amount in such cases is within the sound discretion of the trial court and is to be such as, under all the circumstances, may seem just for securing the maintenance and education of the child, and it does not appear that this discretion was abused in this case. (Gen. Stat. 1909, § 4036; Stahl v. The State, ex rel., 67 Kan. 864, 74 P. 238.)

The defendant was not entitled to a jury trial under section 10 of the bill of rights, which provides that:

"In all prosecutions, the accused shall be allowed . . . a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed."

Section 4026 requires that the prosecution be in the name of the state of Kansas on the relation of the prosecuting witness, and attention is called to the case In re Rolfs, Petitioner, 30 Kan. 758, 1 P. 523, holding that the constitution guarantees a trial by jury in all prosecutions; but in the same opinion it was said (p. 762), that this means a jury trial in all cases in which it existed prior to the adoption of the constitution, and it was held in The State, ex rel., v. City of Topeka, 36 Kan. 76, 86, 87, 12 P. 310, that the words "all prosecutions" mean all criminal prosecutions for violations of the laws of the state. It has long been settled that proceedings of this kind are civil rather than criminal. (Gleason, Sheriff, v. Comm'rs of McPherson Co., 30 Kan. 492, 2 P. 644; The State v. Baker, 65 Kan. 117, 69 P. 170; Poole v. French, 71 Kan. 391, 80 P. 997; Costigan v. Stewart, 76 Kan. 353, 355, 91 P. 83.)

Section 279 of the civil code provides that issues of fact arising in actions for the recovery of money or of specific real or personal...

To continue reading

Request your trial
9 cases
  • State ex rel. Wingard v. Sill, 48531
    • United States
    • United States State Supreme Court of Kansas
    • April 1, 1978
    ...[223 Kan. 667] cases from other jurisdictions which hold that the right exists in paternity proceedings. In State, ex rel. v. Herbert, 96 Kan. 490, 152 P. 667 (1915), this court held that the right to jury trial did not exist in a bastardy action. We have examined the authorities cited by d......
  • Karnes Enterprises, Inc. v. Quan, 48137
    • United States
    • United States State Supreme Court of Kansas
    • March 5, 1977 impress liens on real estate, Fisher v. Rakestraw et al., 117 Kan. 441, 232 P. 605; bastardy proceedings, The State ex rel. v. Herbert, 96 Kan. 490, 152 P. 667; and foreclosure of mortgages, Federal Land Bank v. Butz, 156 Kan. 662, 135 P.2d Cases involving requests for an accounting have......
  • State ex rel. Goodner v. Speed, 47274-2
    • United States
    • United States State Supreme Court of Washington
    • January 15, 1982
    ...v. Harlan, 254 S.C. 207, 174 S.E.2d 753 (1970); Comish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975); State ex rel. Williams v. Herbert, 96 Kan. 490, 152 P. 667 Nevertheless, petitioner argues, without apposite supporting authority, that this court lacked authority to invalidate the bastardy a......
  • Hyatt v. Hill, 19899
    • United States
    • Supreme Court of Utah
    • January 20, 1986
    ...Ark. 293, 357 S.W.2d 651, 94 A.L.R.2d 1126 (1962). Kansas denies jury trials under a similar statute. State ex rel. Williams v. Herbert, 96 Kan. 490, 152 P. 667 (1915). In Utah, a statutory right to trial by jury would seem to be foreclosed by the wording of U.C.A., 1953, § 78-21-1, which I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT