State v. Worthingham

• Decision Date: 25 April 1877
• Citation: 23 Minn. 528
• Parties: STATE OF MINNESOTA <I>vs.</I> ELMER WORTHINGHAM.
• Court: Minnesota Supreme Court

23 Minn. 528

STATE OF MINNESOTAvs.

ELMER WORTHINGHAM.

Supreme Court of Minnesota.

April 25, 1877.

Appeal by defendant from an order of the court of common pleas of Hennepin county, Young, J., presiding, refusing a new trial.

Atwater & Babcock and Lowry & Wilson, for appellant.

James W. Lawrence, for respondent.

CORNELL, J.

This is a proceeding in bastardy, instituted on the complaint of one Mary Sullivan, which charges that she is, and always has been, an unmarried woman, and that, on February 21, 1875, she gave birth to a bastard child, of which defendant is alleged to be the father. On the trial in the court of common pleas of Hennepin county, upon a plea of not guilty, the jury found a verdict of guilty, and the case is now before us on exceptions taken by defendant to various rulings during its progress, and to the instructions given to the jury. Neither the alleged paternity of the child, nor defendant's liability for its support, is contested, but the proceeding is resisted because of an alleged marriage between its admitted parents, resulting in the legitimacy of its birth, and in fastening upon the defendant, as its lawful father, the legal duty of providing for its support and maintenance, together with such other duties and obligations in respect thereto as are incidental to that relation. This legal duty defendant claims always to have acknowledged, and professes still to recognize, and to be willing and ready to perform. Under the issue the burden was upon the plaintiff to establish the fact that the alleged bastard was such, by reason of having been born out of lawful wedlock.

The only witness introduced on behalf of the plaintiff was the complaining witness, Mary Sullivan, who testified in chief as follows: "I have lived with the defendant, in Minneapolis, most of the time for the past eight years. We lived together in his house, and I raised children to him under promise of marriage. He promised to marry me. He had intercourse with me the most of the time during that time. I have had five children by him — four now living, and one dead. The youngest was born in February, 1875, and is the one mentioned in the complaint. I was never married to the defendant. The defendant is the father of that child. I lived with the defendant since December, 1868, in the city of Minneapolis. Elmer told me when I first went to living with him that he would marry me as soon as he could procure a divorce from his wife. It was on that condition that we went to living together."

On her cross-examination defendant propounded the following questions and offer of proof, which were ruled out, under objections as immaterial and irrelevant, except the last, which was excluded on the additional ground of incompetency:

Question. "State where you stayed when you first commenced living with the defendant."

Offer "to prove by witness that during all the time she lived and cohabited with the defendant, and at the time the child was begotten as charged in the complaint, she held herself out to her friends, neighbors, and the world generally as the wife of the defendant; that the parties went to St. Paul, and remained one night, and returned to Minneapolis, and then represented to the world that they had been married; that the complaining witness thereafter assumed and went by the name of Worthingham."

Question. "Were your children ever christened, and, if so, what are their names? By what names do they go? I mean both names."

Each of these questions, together with the offer, fell within the legitimate scope and limits of a pertinent cross-examination. She had testified on her direct examination that she had never been married to the defendant, and also to facts tending, if believed, to show that their relations with each other had been criminal in their inception. It was clearly competent, upon cross-examination, to enquire particularly into the origin of their intercourse, and to show a course of conduct on her part inconsistent with the facts to which she had so testified, both for the purpose of discrediting her testimony, and as tending to disprove the truth of her statements. For this error a new trial must be granted, unless it clearly appears, upon an examination of the whole case, from other testimony which is uncontroverted, that no prejudice resulted.

On the defence, the defendant testified "that, at the time he commenced living with the complaining witness, he had not procured a divorce from his former wife," and he thereupon offered to prove a divorce obtained in the district court for Hennepin county, August 5, 1870, some five years prior to the birth of the alleged bastard. This offer was overruled on the alleged ground that defendant's counsel stated, in answer to an enquiry by the court, that he did not propose to follow it up by proof of a marriage after the divorce. The implied admission, contained in this testimony and offer, of the existence of a former marriage, was, perhaps, as against defendant, sufficient evidence of that fact to require proof of its dissolution before the reception of any testimony to establish a matrimonial union between him and the prosecuting witness; and the decision of the court in overruling the offer was undoubtedly correct, if the word marriage, as used in the enquiry and answer, was understood by both court and counsel as being so used in its strict legal sense and meaning. Moreover, if it be conceded that the accused had another wife living when his cohabitation with the complaining witness, under a promise of marriage, per verba de futuro, began, and that no contract of marriage existed between them, except such as might be implied from that promise alone, it is clear that no substantial prejudice could have resulted to him by reason of any of the alleged erroneous rulings of the court in the rejection of evidence, or in its charge to the jury. But we are satisfied, from an examination of the whole record, and from the points made on the argument, that the use of the word marriage, in the connection above stated, was intended and understood, by both court and counsel, in a restricted sense, as referring solely to a marriage in fact, duly celebrated and solemnized in the manner prescribed by statute. The correctness of this conclusion is apparent from the fact that, immediately upon the rejection of the offer, some evidence was received, and some was offered and excluded, tending to show, by cohabitation and repute, a marriage between the parties by...