State v. Nestaval

Decision Date02 June 1898
Docket NumberNos. 11,107 - (20).,s. 11,107 - (20).
Citation72 Minn. 415
CourtMinnesota Supreme Court

Charles G. Kolars, for appellant.

P. J. Kirwin, County Attorney, for respondent.


The defendant, Nestaval, was arrested upon the complaint of Mary Mach, an unmarried female, charging him with being the father of an unborn child, with which she was pregnant, and which, if born alive, would be a bastard. The proceeding was had under G. S. 1894, c. 17. The trial from which this appeal is taken was had before a jury in the district court of Le Sueur county. The defendant denied the charge in the complaint, but was found guilty by the jury, and he moved to set aside the verdict and for a new trial for errors of law occurring at such trial. This motion was denied by the court.

The error alleged arises upon that part of the charge which is as follows:

"Another consideration which you may properly take into consideration is what motive a witness may have for testifying falsely so far as it appears from the evidence in the case; and one motive which is sometimes an inducement to misrepresent is the pecuniary interest which a witness may have in the result of the suit. That is one motive which may actuate and prompt men and women to make false statements and give untrue testimony. So far as the pecuniary interest in the result of this suit is concerned, the complainant and the defendant are not equal, the defendant having a direct pecuniary interest in it, and the complainant having none. I do not mean by what I have stated as to the pecuniary interest of the complainant and the defendant to instruct you that the complainant has told the truth, and the defendant has told an untruth, or the reverse. I leave it to your judgment. It is a matter solely for your judgment. I simply call your attention to the motive which the defendant might have. So far as the pecuniary interest is concerned, in the result of this suit the parties do not stand equal."

At common law the putative father is under no legal liability to support his illegitimate offspring. Schouler, Dom. Rel. § 279; 3 Am. & Eng. Enc. (2d Ed.) 889. And, as against the mother of a bastard child, the putative father has no legal right to its custody, but the mother, as its natural guardian, is entitled to its control, and is bound to maintain it. 3 Am. & Eng. Enc. (2d Ed.) 889, and authorities there cited. In contemplation of the common law, an illegitimate child was designated as nullius filius, son of no one, and therefore had no father who was bound to support it or could rightfully claim its care and custody. The sworn father is called the "putative father" because he is supposed to be the father of the illegitimate child; but there can be no doubt as to who is the mother, and hence the mother, as guardian by nurture, has the right to the custody and control of her bastard child until it shall have attained an age when, in contemplation of the law, it can make an election between father and mother; but in the meantime the legal obligation of supporting it devolves upon the mother. This, of course, involves a pecuniary responsibility. Board and clothing must be furnished, lest the unfortunate child suffer, and the maternal instincts of the erring mother lead her to care and provide for her illegitimate offspring.

The statute law, more humane in its provisions than the common law, aids her in this respect. It is true that the statute makes the putative father one in law for a particular purpose, viz. for the indemnity of society against the expense of the support of the child, and upon complaint of the mother or certain designated public officers an inquiry may be had as to the identity of the putative father, and upon sufficient proof he may be adjudged to pay a certain amount in support of his illegitimate child, or be imprisoned in default thereof. G. S. 1894, § 2041, provides:

"If such accused person pays or secures to be paid to the female complaining such sum of money or other property, as she may agree to receive in full satisfaction and as is approved by the commissioners of the county, of which agreement and approval the justice shall make a memorandum upon his docket, and shall also pay all expenses, if any, incurred by such county for the lying-in, and support and attendance upon the mother of such child during her sickness, and the costs of prosecution, and shall also give bond with sufficient sureties, to be approved by the justice, to the commissioners of the county in which such female resides, and their successors in office, conditioned to secure and indemnify such county from all charges for the maintenance of the child born or that may be born, the justice shall discharge such accused person."

If the trial is in the district court, and the accused is found guilty, he shall be adjudged to be the father of the child, and be charged with the maintenance thereof in such sum or in such manner as the court may direct. G. S. 1894, § 2044.

It was decided in State v. Zeitler, 35 Minn. 238, 28 N. W. 501, that the trial court might make a reasonable allowance for the past as well as the future maintenance of the child, including lying-in expenses, to be paid the mother for her use when not paid or incurred by the public. If the accused refuses to give a bond for the performance of such judgment or order, he may be imprisoned; but after 90 days' imprisonment, on verified petition that he is unable to comply with such order or judgment, he may be discharged from...

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