State v. Tipton
| Decision Date | 08 November 1894 |
| Citation | 38 P. 222,15 Mont. 74 |
| Parties | STATE ex rel. ZEHNTNER v. TIPTON. |
| Court | Montana Supreme Court |
Appeal from district court, Meagher county; Frank Henry, Judge.
Bastardy proceedings by the state on the relation of Martha Zehntner against John C. Tipton. There was a judgment for defendant and plaintiff appeals. Reversed.
Thompson & Maddox, for appellant.
Smith & Gormley, for respondent.
DE WITT, J. (after stating the facts).
The first alleged error is stated in the bill of exceptions as follows: "After having introduced testimony tending to prove that the prosecuting witness or plaintiff did, on the 24th day of May, 1893, at the county of Meagher, state of Montana, of which state she was a resident, give birth to a male child; that the child at the time of the trial was alive, and was a bastard; that at the time of the conception and at the time of the birth of said child, and at the time of the trial, she was an unmarried woman; that the defendant was the father of said child; that defendant had had sexual intercourse with her on the 7th, 14th, and 20th days of August, 1892; that such acts of sexual intercourse took place at defendant's ranch, in said county and state, where she was then working as a domestic,--had called and sworn one Mary Zehntner, and after having shown by said witness that she was present at the birth of complainant's child offered to prove by said witness that the complainant, Martha Zehntner had, before the birth of her said child, and during the pains of childbirth, and while in labor or travail, stated that the defendant, John C. Tipton, was the father of her child thereupon asked the said witness the following question 'Do you remember now whether, while she was undergoing labor pains, she stated who the father was?' whereupon counsel for the defendant objected to the question 'for the reason that any declaration that might have been made by the prosecuting witness, not under oath, is incompetent testimony, and is a declaration in her own favor'; which said objection was by the court sustained, and to which ruling the prosecution duly excepted." Appellant's counsel now contends that the declarations of the relator as to who was the father of the child, made while she was in labor, are competent testimony. To support this contention he cites us to certain cases, such as Robbins v. Smith, 47 Conn. 182; R. R. v. J. M., 3 N. H. 135; Beals v. Furbish, 39 Me. 469; Com. v. Cole, 5 Mass. 518. But those cases were decided under peculiar statutes,--statutes enacted when parties were not competent to testify in their own behalf. Such statutes gave to the plaintiff the right to introduce on the trial evidence that she had been put to discovery at the time of her travail, and had remained constant in the accusation of the defendant as the father of the child. Thus the fact of her having made such discovery was competent testimony on the trial. But we neither have such statute nor the need therefor. All persons with us are competent witnesses (section 647, Code Civ. Proc.), with certain exceptions, not here necessary to state. Therefore there is no principle or statute under which it can be held that it is competent for a party to prove in court what he himself has said out of court, and not under oath, when such matter is simply evidence in his favor, and is nothing more than a prior iteration of the testimony which he may now give upon the trial. That would be to allow a party to prove by...
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