State v. Schwartz

Decision Date11 December 1940
Docket Number28176.
PartiesSTATE v. SCHWARTZ.
CourtOhio Supreme Court

Appeal from Court of Appeals, Sandusky County.

Syllabus by the Court.

1. An adjudication in a bastardy proceeding is not conclusive upon the state unless expressly made so by statute, and the state has the power to prosecute criminal proceedings for nonsupport of an illegitimate child at any time, Before after and independently of an adjudication in a bastardy proceeding, and wholly independently of any finding therein made, or judgment therein rendered, with respect to the question of paternity.

2. The record of a bastardy proceeding, wherein a defendant was adjudged not to be the reputed father of an illegitimate child, is not admissible as evidence in a criminal prosecution by the state against the same person for nonsupport of such child.

This case originated in the Court of Common Pleas of Sandusky county, wherein Melvin Schwartz, appellant herein, was indicted for failure to provide for the support of an illegitimate child, the indictment being drawn in conformance with Section 13008, General Code. Appellant filed a plea in abatement, in which he pleaded a previous proceeding, instituted under the bastardy statutes (Section 12110 et seq., General Code) by Marie Fouke, the mother of the child in question, which proceeding resulted in the defendant, appellant in this action, being found not to be the reputed father of the complainant's child. $The appellant prayed for an order dismissing the indictment. The plea in abatement was overruled by the Court of Common Pleas and an appeal from that ruling was prosecuted to the Court of Appeals, wherein the appeal was dismissed on the ground that the plea in abatement was not a final order, and was not therefore, appealable. A motion filed in this court for leave to appeal was overruled and an appeal filed as of right was dismissed. State v. Schwartz, 136 Ohio St. 25, 23 N.E.2d 78.

The cause thereafter came on for trial in the Common Pleas Court and appellant, being duly arraigned, pleaded not guilty. A jury was impanelled and sworn and the trial begun. During the trial, appellant offered in evidence the record and files of the previously tried bastardy case which had resulted in his favor. Upon objection raised, the court refused to admit the record in evidence and, after proffer, the record was attached to the bill of exceptions. At the conclusion of the evidence, the jury retired, deliberated and returned a verdict of guilty. An appeal was taken to the Court of Appeals from the judgment entered on that verdict and a motion to dismiss the appeal was filed by appellee, the state of Ohio. The judgment of the Court of Common Pleas was affirmed by the Court of Appeals, without written opinion. The appellant thereupon petitioned this court for leave to appeal from the decision of the Court of Appeals, and this court granted his motion. The case is now before this court on its merits.

Bracy & Young, of Clyde, and Young & Young, of Norwalk, for appellant.

Alexander L. Hyzer, of Fremont, for appellee.

DAY Judge.

The questions presented for our determination are, first, whether the trial court erred in refusing to admit the record of the bastardy proceeding as evidence, and, second, whether the trial court erred in its charge to the jury.

Appellant contends that the record of the bastardy proceeding was admissible in evidence; that such a proceeding is one in rem fixing the status of the child; that thereafter the mother is precluded from asserting in any court that the appellant was the father; and that any prosecution commenced by her should be abated and barred upon such record being produced in court.

At the outset, it is well to observe that a bastardy proceeding is an action prosecuted by an individual, while an action for nonsupport of an illegitimate child is criminal in nature and prosecuted by the state. A bastardy proceeding is controlled by the Code of Civil Procedure. As was said in the case of Dimmitt v. State ex rel. Milburn, 112 Ohio St. 691, at page 698, 148 N.E. 90, at page 92: '* * * it is true that the form of verdict is guilty or not guilty, but it is also true that the relief sought is not punishment of the defendant * * *. The action is therefore criminal in form, but the relief sought and the ultimate end to be attained are clearly of a civil nature.'

It is the general rule that a judgment of conviction or acquittal in a criminal case cannot be used in a civil case as evidence of the facts or matters upon which such judgment is founded (see 7 Encyclopedia of Evidence, 850; 30 American Jurisprudence, 1002, § 289 et seq.); and this is so even if the same questions of fact are in issue in both cases. Betts v. New Hartford, 25 Conn. 180.

With respect to the admissibility of the record of a bastardy proceeding in criminal prosecution for nonsupport of an illegitimate child, the court, in Gee v. State, 60 Ohio St. 485, 55 N.E. 48, announced the doctrine that 'On the trial of the issues joined by a plea of not guilty to an information or an indictment charging the...

To continue reading

Request your trial
7 cases
  • John J. Shrader v. the Equitable Life Assurance Society of the United States
    • United States
    • United States Court of Appeals (Ohio)
    • December 6, 1984
    ...a reasonable doubt. A fact established beyond a reasonable doubt establishes the same fact by a lesser degree of proof. State v. Schwartz (1940), 137 Ohio St. 371, is distinguishable. That case held that an adjudication in civil bastardy proceeding under a lesser standard of proof was not a......
  • State v. Carter
    • United States
    • United States State Supreme Court of Ohio
    • June 26, 1963
    ...father of such child. See Gee v. State (1899), 60 Ohio St. 485, 55 N.E. 48; Ogg v. State, 73 Ohio St. 59, 75 N.E. 943; State v. Schwartz, 137 Ohio St. 371, 30 N.E.2d 551. It is sufficient if such determination is made for the first time in the proceeding in which he is A more serious proble......
  • Moreno v. Superior Court of Pima County
    • United States
    • Court of Appeals of Arizona
    • May 26, 1966
    ...father of such child. See Gee v. State (1899), 60 Ohio St. 485, 55 N.E. 48; Ogg v. State, 73 Ohio St. 59, 75 N.E. 943; State v. Schwartz, 137 Ohio St. 371, 30 N.E.2d 551. It is sufficient if such determination is made for the first time in the proceeding in which he is convicted.' (Emphasis......
  • State v. Snyder, 32678
    • United States
    • United States State Supreme Court of Ohio
    • February 27, 1952
    ...is not admissible in evidence.' See, also, Ogg v. State, 73 Ohio St. 59, 75 N.E. 943. Conversely, in the case of State v. Schwartz, 137 Ohio St. 371, 30 N.E.2d 551, it was held that, in a bastardy proceeding where the defendant had been adjudged not to be the father of an illegitimate child......
  • 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