Wilson v. State
| Decision Date | 22 October 1918 |
| Docket Number | 9250. |
| Parties | WILSON v. STATE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the necessary jurisdictional facts appear in the record, and the complaint could have been cured by amendment, failure to allege such necessary jurisdictional facts cannot be presented for the first time on appeal.
A bastardy proceeding in this state being a special proceeding which the rules of pleading and practice applicable to civil actions govern, where the complaint fails to allege necessary jurisdictional facts, and no demurrer is filed to the complaint, and no objection is made to the introduction of evidence, and without objection on the part of the defendant evidence is offered at the trial showing the necessary jurisdictional facts, the failure to allege such facts in the complaint cannot be taken advantage of upon appeal.
Where the essential fact necessary to give the court jurisdiction is shown in evidence, and is not contested by the defendant no issue as to such fact arises, and the giving of an instruction which fails to require the jury to find the necessary jurisdictional fact does not constitute reversible error, no instruction having been requested upon that issue.
The Legislature, by the adoption of the Revised Laws of 1910 vested in the county court exclusive jurisdiction of bastardy cases under authority of section 10, art. 7, of the Constitution.
Article 3, c. 55, Rev. Laws 1910, does not limit the amount of the judgment which may be rendered by the county court in a bastardy proceeding, and the limitation upon the concurrent jurisdiction of the county court in civil actions provided in section 12, art. 7, of the Constitution, has no application to a bastardy proceeding.
Where the record discloses that the party moving for a new trial because of newly discovered evidence had knowledge of such evidence at the time of the trial, the action of the trial court in denying the motion for new trial will not be disturbed upon appeal.
Where the evidence upon which a motion for new trial because of newly discovered evidence is predicated is merely impeaching and cumulative, the action of the trial court in denying such motion for new trial will not be disturbed upon appeal.
Additional Syllabus by Editorial Staff.
Newly discovered evidence, warranting the grant of a new trial, must be such as will probably change the result, must have been discovered since the trial, and such as could not have been discovered before the trial by due diligence, must be material, and not merely cumulative or impeaching.
Commissioners' Opinion, Division No. 1. Error from County Court, Pontotoc County; Orville Busby, Judge.
Bastardy proceeding by the State of Oklahoma, on complaint of Lilly Lamb, against Ode Wilson. From a judgment of conviction ordering defendant to pay certain money into the court for the maintenance and education of the child, he brings error. Affirmed.
C. O. Barton, Robt. Wimbish, and W. C. Duncan, both of Ada, for plaintiff in error.
S. P. Freeling and Hunter L. Johnson, both of Oklahoma, City, for the State.
This proceeding was instituted in the county court of Pontotoc county by the county attorney upon complaint of Lilly Lamb, charging the plaintiff in error, hereinafter styled the defendant, with being the father of her bastard child. There was a trial to a jury, resulting in a verdict finding the defendant guilty, upon which verdict judgment was rendered by the court ordering the defendant to pay into court the sum of $10 a month for the care, maintenance, and education of the child until the further orders of the court.
The first assignment of error is based upon the failure of the complaint to state the necessary jurisdictional facts. The complaint omits to allege that the complainant, the mother of the child, was a resident of Pontotoc county. The defendant in support of this assignment of error relies upon Anderson v. State, 42 Okl. 151, 140 P. 1142, and Cummins v. State, 46 Okl. 51, 148 P. 137. There is no question that the complaint in the instant case is defective in that it fails to allege the residence of the mother; but, unfortunately for the defendant, no demurrer was filed to the complaint nor was any objection made to the introduction of evidence thereunder. Evidence was offered at the trial without objection by the defendant, both by the state and the defendant, showing that the complainant, the mother of the child, at all times mentioned in the complaint was a resident of Pontotoc county.
A bastardy proceeding in this state is not a criminal case, but a special proceeding in the nature of a civil case. Cooper v. State, 36 Okl. 189, 128 P. 115; Anderson v. State, supra; Libby v. State, 42 Okl. 603, 142 P. 406. Under those authorities, the rules of pleading and practice applicable to a civil action govern the proceedings in a bastardy case. That being true, even though the complaint be informal and defective, if, without objection, evidence is offered at the trial which cures the defect, the pleadings will be presumed to be amended, if necessary, to conform to the evidence. Bohart v. Mathews, 29 Okl. 315, 116 P. 944; Kaufman v. Boismier, 25 Okl. 252, 105 P. 326; Hamilton v. Blakeney, 165 P. 141. Since the jurisdictional facts appear in the record, and the complaint could have been cured by amendment, the defendant cannot present the failure to allege necessary jurisdictional facts for the first time on appeal. 3 C.J. 754; 7 C.J. 979.
The defendant next complains of the giving of two instructions. It is unnecessary to set out these instructions in extenso in this opinion, but complaint is made that the court failed to instruct the jury that, before finding the defendant guilty, they must find that the mother was a resident of Pontotoc county. As we have said, the evidence offered both by the state and the defendant showed that the mother was a resident of Pontotoc county. The question of the place of residence of the mother, therefore, was not an issue before the jury. Under the rules of practice applicable to a civil action, the court is not required to submit to the determination of the jury questions of fact which are conceded or upon which no issue is presented by the evidence. The defendant did not request the court to instruct upon this issue nor was the court's attention to the question of jurisdiction challenged in any way at the trial. We conclude that the giving of the instructions complained of did not constitute error.
The most serious question presented by the defendant is raised in his next assignment of error, which is that the judgment rendered by the court is in excess of its jurisdiction. The judgment required the defendant to pay $10 a month for the support of the child until the further order of the court. In the absence of such further order, the defendant will be required, in obedience to the judgment, to pay $10 a month until the child reaches its majority, which under the mortality tables it could be expected to do. Compliance with this judgment would require the defendant to pay during the minority of the child a sum considerably in excess of $1,000. It is therefore contended by defendant that the judgment rendered is in excess of the jurisdiction of the county court. The defendant relies upon the case of Cooper v. State, supra, and Cummins v. State, supra. Both of these cases arose before the adoption by the Legislature of the Revised Laws of 1910. Mr. Commissioner Ames who wrote the opinion in Cooper v. State, supra, treats the jurisdiction of the county court in cases of this character as being limited to the sum of $1,000. He says:
"As no prayer for damages is contemplated, but as it is a special proceeding wholly dependent on the statute, and as the jurisdiction rests in the county court or does not exist at all, we think the prayer for damages in excess of the amount of the jurisdiction of the county court should be treated as surplusage."
In Cummins v. State, Mr. Commissioner Collier, who wrote the opinion of the court, says:
'
Our law governing proceedings in bastardy was first adopted by the territorial Legislature of Oklahoma, and until the adoption by the Legislature of the Harris-Day Code (Revised Laws of 1910), to be continued in force must have been found not repugnant to the Constitution of the state. Section 12, art. 7, Const., fixing the jurisdiction of the county court, says:
"The county court, coextensive with the county, shall have original jurisdiction in all probate matters, and, until otherwise provided by law, shall have concurrent jurisdiction with the district court in civil cases in any amount not exceeding one thousand dollars exclusive of interest."
The territorial Legislature gave exclusive jurisdiction of...
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