Strickler v. Grass

• Citation: 49 N.W. 804,32 Neb. 811
• Parties: STRICKLER v. GRASS.
• Decision Date: 16 September 1891
• Court: Supreme Court of Nebraska

32 Neb. 811

49 N.W. 804

STRICKLER

v.GRASS.

Supreme Court of Nebraska.

Sept. 16, 1891.

Syllabus by the Court.

1. The provision of statute that, upon a complaint of bastardy by an unmarried woman to a justice of the peace that she is pregnant, or has been delivered of a child, charging a putative father of the offense, the defendant shall be arrested, and brought to answer, requires the justice to examine the complainant under oath touching her complaint, which examination is to be reduced to writing, are provisions for the protection of defendants, and may be waived without prejudice to their defense.

2. In an action of bastardy, upon an answer of not guilty by the defendant, witnesses may be examined on the part of the plaintiff as to the intimate relations apparently existing between plaintiff and the accused at and about the time of the claimed conception.

3. The proceeding under the bastardy act is essentially a civil one, and a preponderance of evidence is sufficient. Altschuler v. Algaza, 16 Neb. 631, 21 N. W. Rep. 401.

4. The evidence examined, and held to sustain the verdict.

Error to district court, York county; NORVAL, Judge.

Action by Nevia Grass against D. R. Strickler, for bastardy. Judgment for plaintiff. Defendant appeals. Affirmed.Geo. B. France, for plaintiff in error.

Sedgwick & Power, for defendant in error.

COBB, C. J.

The action was based upon a complaint for bastardy by the defendant in error against the plaintiff in error, tried before a jury in the district court of York county, with verdict and judgment for the plaintiff, defendant in error.

There are several errors presented in this court. The first one in the order of presentation in the brief of plaintiff in error, though not in issue at the trial nor presented in the motion for a new trial, is of considerable practical importance, and will be first considered. It appears from the certificate of the justice who issued the warrant upon which the plaintiff in error was arrested that, upon being brought before him, the plaintiff in error waived an examination, and entered into a recognizance, with security, for his appearance at the next term of the district court. He now, in the brief of counsel, seeks to raise the point that the district court had not jurisdiction to try him upon the charge of bastardy, for the reason that there was no examination under oath of the complainant, the defendant in error, upon her charge made against the plaintiff in error before the justice of the peace, as a basis for the jurisdiction of the district court. Section 1, c. 37, Comp. St., which chapter is devoted to the subject of illegitimate children, must doubtless be treated as in a sense mandatory; certainly so to the extent that there is no discretion resting in a justice of the peace to waive, fail, or refuse to carry out any of its provisions, so far as the same are for the protection of the county, the mother of the illegitimate child, or the child itself. These three in a sense constitute one party to the suit. The defendant, who is accused as being the father of the illegitimate child, is entitled to all the rights necessary to his defense. Among these is the right to have the woman who accuses him of being the father of her child placed under oath and subjected to a cross-examination and examined, and such examination reduced to writing, on every point deemed necessary or proper to elucidate the fact of his paternity. But this is a right the exercise of which is sometimes unpleasant to the parties most interested, and is one which the putative father is not obliged to insist upon and have exercised to the delectation and amusement of the crowd. If he is not the father, or believes himself not to be, he may either insist upon all his rights, including that of having the salacious tale told and recorded, and thereby render it necessary that the date of the birth of the child (in cases where the child is not yet born) shall to a reasonable degree tally in point of time with the alleged date of conception, and, moreover, subject the plaintiff's character, habits, and associations, covering a given period of time, to such searching investigation and criticism as he may think advisable and necessary, or as tending to shift the charge of an illegitimate paternity from his shoulders and fasten it upon others. On the other hand, whether he believes himself to be the father or not, he may, without admission or acquiescence in the charge, waive the right to have the plaintiff subjected to an examination in the justice's court. Indeed, there is scarcely one, if any, right possessed by a party in a lawsuit which he cannot, if he chooses, waive, and not insist upon the exercise of. I know of no reason, nor has any been suggested, why this right should be taken out of that general, if not universal, rule. In the case at bar, the plaintiff was first examined as to her intercourse with the man whom she charged with the paternity of her child in the district court. The statements of fact, of time and of circumstance were there recorded, and made the basis of attack by the plaintiff in error, the same as would have been her statements if originally made before the justice of the peace, and afterwards repeated in the district court, with the single exception that the defendant might in the latter case have had some slight advantage in the discrepancies between the statement as originally made before the justice of the peace and as repeated in the district court. This advantage, never important in any case, was waived in this, and that is the entire significance of this point of error.

The second error presented and argued in the brief is that of alleged errors of law occurring at the trial, and duly excepted to. This is based upon the overruling of several separate objections of defendant to as many questions put to defendant in error by her counsel, tending to bring out from her evidence of the intimate relations existing between plaintiff and defendant at and about the time of the alleged intercourse between them. Three of these questions excepted to I will here quote: “Question. Well, how intimately did you keep company with him, the defendant,...