State v. Reese

Decision Date10 September 1913
Docket Number2494
Citation43 Utah 447,135 P. 270
CourtUtah Supreme Court
PartiesSTATE v. REESE

APPEAL from District Court, First District; Hon. W. W. Maughan Judge.

Action by the State against Moses Reese for bastardy.

Judgment in favor of the State. Defendant appeals.

REVERSED AND REMANDED.

M. E Wilson, and Fred W. Crockett for appellant.

A. R Barnes, Attorney-General and E. V. Higgins and George C. Buckle, Assistant Attorneys-General, for the State.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

Some time prior to May 6, 1912, one , an unmarried woman whom we shall designate the prosecutrix, filed a complaint before a justice of the peace of Cache County, Utah, against the appellant, a married man, charging him with being the father of her unborn child. The justice held appellant to answer to the district court of said county, and on the 6th day of May aforesaid the district attorney of Cache County filed an information in the district court of said county in which he charged the appellant with having had unlawful sexual intercourse with the prosecutrix on the 29th day of August, 1911; that as a result of said intercourse said prosecutrix became and is pregnant with child, which if born alive will be a bastard, the maintenance and education of which will likely become a public burden, and that the appellant is the father of said child. To this information the appellant pleaded not guilty, and upon a trial to a jury after the child was born he was found guilty of being the father of said child. The court entered judgment adjudging him to be the father and required him to pay to the clerk of said court the sum of $ 200 for the first year and $ 150 each year thereafter for a period of seventeen years, payable in quarterly installments, for the support and maintenance of said child; that appellant enter into a bond with approved sureties to secure all of the payments aforesaid; and that in case he failed or neglected to pay said money or give the bond aforesaid "he be committed to the county jail of Cache County, Utah, until compliance with said demand or until discharged in due course of law." Appellant appeals from said judgment and has assigned numerous errors for which he insists the judgment should be reversed. We shall consider the errors deemed material substantially in the order in which they are presented by appellant's counsel in their brief. We shall state the facts, so far as deemed necessary, in connection with the points decided.

It is contended that the act (chapter 62, Laws Utah 1911) under which appellant was prosecuted is invalid for various reasons: The first reason urged is that the act is invalid because it does not define bastardy, and that the procedure to be followed is vague and uncertain. The act is copied bodily from the laws of the state of Illinois upon the subject of bastardy. See 1 Starr & Curtis Ann. Ill. Stats. (2d Ed.) 1896, p. 522 et seq. The only difference between the Illinois statute and chapter 62 aforesaid consists in the changes necessary to make said chapter conform to the jurisdiction of our courts and their procedure. The manner of lodging complaint before a justice of the peace, the hearing thereon and requiring the accused to appear before the trial court, and the information filed therein are, however, the same as provided by the Illinois law. The statute was in force in Illinois for almost forty years before it was adopted by the legislature of this state, and the courts of Illinois, as we shall hereinafter see, have passed upon almost every phase of it. Without going into the subject farther at this time, we are constrained to hold that the act is not invalid as a whole. The specific provisions of the act which it is contended are invalid will be taken up in their order hereafter.

It is next insisted that the evidence is insufficient to sustain the judgment of conviction. This contention is, to a large extent, based upon the theory that the proceeding is criminal, and that therefore appellant's guilt had to be established beyond a reasonable doubt. The trial court took this view and so charged the jury; and, although they found that the fact of appellant's guilt was established beyond a reasonable doubt, he nevertheless insists that the finding of the jury is without support in the evidence. It has repeatedly been held by both the Supreme and Appellate Courts of Illinois that the proceeding, although prosecuted in the name of the state and criminal in form, is nevertheless civil, and that a preponderance of the evidence is sufficient to convict. ( Rawlings v. People, 102 Ill. 475; Davis v. People, 50 Ill. 199; People v. Starr, 50 Ill. 52; Johnson v. People, 140 Ill. 350, 29 N.E. 895; Gehm v. People, 87 Ill.App. 158; Lewis v. People, 82 Ill. 104.) Under a law which is in many respects similar to the Illinois statute, the Supreme Court of Nebraska has laid down the same doctrine in the following cases: Cottrell v. State, 9 Neb. 125, 1 N.W. 1008; Jones v. State, 14 Neb. 210, 14 N.W. 901.

In 9 Neb. 125, 1 N.W. 1008, it is said:

"And (the action), being essentially a civil action, the better course is to conduct the prosecution in the name of the real party in interest. But in such a case the state is a mere trustee, and the real party in interest obtains the benefit of the judgment; the object of the action being merely to enforce the discharge of a civil and moral obligation, that of support by a father of his own child."

In view of what is said above, the proceedings in Nebraska are usually conducted in the name of the mother of the child against the putative father. But whether conducted in the name of the state or by the mother the procedure is the same and the rules of evidence and the quantum of proof applicable to civil cases control.

In passing upon the question now under consideration, the Supreme Court of Illinois in Rawlings v. People, supra, says:

"It is well settled by the decisions of this court that a prosecution under the bastardy act is a civil and not a criminal proceeding; that, though in form criminal, it is essentially of the nature of a civil action, the object being, not the imposition of a penalty for an immoral act, but merely to compel the putative father to contribute to the support of his illegitimate child."

Entirely apart from the fact, however, that the legislature of this state adopted the Illinois statute after the highest court of that state had held the prosecution and consequences thereof to be civil and not criminal, we think it is manifest that the legislature of this state did not intend the bastardy act to be criminal in its consequences.

An unlawful sexual act, other than rape, is by our statute made a crime and can be punished as such. In the case at bar the prosecutrix could have been punished for fornication while appellant could have been convicted and punished for adultery. It was wholly unnecessary, therefore, to enact another criminal statute to punish acts already made punishable, but it was necessary to adopt some law whereby the putative father of an illegitimate child could be compelled to make provision for its support and education. Why should not the fathers of illegitimate children be compelled to provide for their offspring so far as this can be done by law, when the fathers of legitimate children are by law required to do so? The proceeding is therefore intended to enforce a moral obligation and is thus civil in its consequences, and a mere preponderance of the evidence is sufficient to support the verdict. In this connection it has squarely been held by both the Supreme Court and the Appellate Court of Illinois that the uncorroborated testimony of the prosecutrix is sufficient to support a verdict although the accused may testify directly contrary to her statements. The question is for the jury and they must ordinarily determine which one is most worthy of belief. ( Davis v. People, supra; People v. Starr, supra; Riggins v. People, 46 Ill.App. 196; Common v. People, 39 Ill.App. 31. To the same effect are Dailey v. State, 28 Ind. 285; McClellan v. State, 66 Wis. 335, 28 N.W. 347.) And the decisions in Nebraska are all to the same effect. The cases are collated in the notes to sections 6300 to 6307 of 2 Cobbey's Ann. Stat. Neb. 1907.

In this case the testimony of the prosecutrix and that of appellant are diametrically opposed; she positively testifying that he had sexual intercourse with her and he as positively denying it. It was a question for the jury to say which one was more worthy of belief and which one under all the circumstances they would believe. The contention, therefore, that the judgment should be reversed for the reason that the evidence is insufficient to support the verdict of the jury cannot be sustained.

Another contention is that the court erred in charging the jury as follows:

"If you believe from the evidence that any witness who has testified in this case has knowingly and willfully testified falsely to any material fact in this case, you may disregard the whole testimony of such witness, or you may give such weight to the evidence of such witness on such other points as you may think it entitled." It is insisted that the instruction is bad because it did not contain the usual qualifying clause "unless the witness is corroborated by other credible evidence."

Under our statute (Comp. Laws 1907, section 3147) the court in every case "must inform the jury that they are the exclusive judges of all questions of fact," and as a matter of course they are also the judges of the credibility of the witnesses and the weight to be given to their testimony when considered as a whole or of any particular part. These cautionary instructions, in view that they...

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23 cases
  • State v. Sax, 34891
    • United States
    • Minnesota Supreme Court
    • April 21, 1950
    ...763. In making its order, the court should carefully inquire into the financial standing and ability of the father. State v. Reese, 43 Utah 447, 467, 135 P. 270, 278; State v. Hammond, 46 Utah 249, 255, 148 P. 420, 423; James v. Commonwealth, 190 Ky. 458, 461, 227 S.W. 562, 563; Annotation,......
  • State v. Sing
    • United States
    • Idaho Supreme Court
    • July 1, 1922
    ...the evidence of such witness be corroborated by other witnesses or evidence. (State v. Morris, 40 Utah 431, 122 P. 380; State v. Reese, 43 Utah 447 135 P. 270; State Due. 44 Utah 190, 138 P. 1193; State v. Hillstrom, 46 Utah 341, 150 P. 935; Cole v. State (Okla. Cr.), 195 P. 901; Peak v. Pe......
  • Myers v. Garff, Civ. No. C86-0693G.
    • United States
    • U.S. District Court — District of Utah
    • March 4, 1987
    ...Const. may become important: "There shall be no imprisonment for debt except in cases of absconding debtors." See also State v. Reese, 43 Utah 447, 135 P. 270, 276 (1913) (to uphold imprisonment it must be shown that debtor did not refuse to pay because he was insolvent and unable to give 2......
  • Skaggs v. State
    • United States
    • Arizona Supreme Court
    • June 28, 1922
    ... ... the order of the court upon or after [24 Ariz. 200] final ... judgment, where such failure is not due to contumacy, but ... merely to the actual inability of the defendant to comply, ... could be in any event properly authorized, may be doubted ... See State v. Reese, 43 Utah 447, 135 P ... Disregarding, ... therefore, mere forms and nomenclature, and looking to the ... substance of the rights and remedies conferred by the ... statute, it will be seen that the only feature of the ... bastardy statute which may be supposed to bring it within the ... ...
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