Wimberly v. State

• Decision Date: 24 May 1909
• Citation: 119 S.W. 668,90 Ark. 514
• Parties: WIMBERLY v. STATE
• Court: Arkansas Supreme Court

119 S.W. 668

90 Ark. 514

WIMBERLY v. STATE

Supreme Court of Arkansas

May 24, 1909

Appeal from Montgomery Circuit Court; James S. Steel, Judge affirmed.

Judgment affirmed.

J. I Alley, for appellant.

1. The evidence of Mann was not admissible. Bastardy is a civil action, and his deposition could have been taken. Kirby's Dig. § 3157. His previous testimony could have been used, if the accused was then present. 58 Ark. 370. The same rules of evidence apply as in other civil cases. 2 Enc. of Ev. p. 242; 115 Ind. 421; 17 N.E. 909; 81 Minn. 501. Before secondary evidence can be used, the superior or primary must be out of reach without fault. 2 Enc. Ev. p. 308.

2. The appeal should have been dismissed after defendant had been acquitted in the county court. Kirby's Dig. §§ 489, 1487; 61 Ark. 407; 84 Id. 199. The mother has no interest in the result. Kirby's § 493.

C. A Cunningham, Assistant Attorney General, for appellee; June P. Wooten, of counsel.

1. Proper foundation was laid to introduce Mann's testimony. 58 Ark. 377; 33 Id. 539; 1 Greenl. on Ev. § 163. Kirby's Dig., § 3157, does not impose the duty on the State to have depositions taken. It states "depositions may be used." The admission was within the sound discretion of the court--no abuse is shown. 58 Ark. 372.

2. It was not necessary to give the words of Mann, if the substance was given. 58 Ark. 377; 1 Greenl. Ev. § 165.

3. The mother, the real party in interest, could appeal and give bond, etc. Kirby's Dig. §§ 489, 4666, 1485; 61 Ark. 407; 3 Enc. Pl. & Pr. 277; 9 Neb. 125; 67 Ark. 493; 60 Id. 524; 33 Id. 745.

OPINION

BATTLE, J.

On the 17th day of July, 1907, Lena D. McBride filed with the clerk of the Montgomery County Court an affidavit, accusing Willis M. Wimberly of being the father of bastard child delivered by her on the 19th of June, 1907, and asking for judgment against him for fifteen dollars for lying-in expenses and for the monthly sum of three dollars for seven years for the support of the child. The judge of the county court thereupon issued a warrant, in the name of the State of Arkansas, to any sheriff or constable of this State, commanding him to arrest and carry the accused before the county judge to answer such charge. He was arrested, and tried by the county court, at a regular term thereof, and acquitted and discharged. An appeal to the circuit court was asked and granted, Lena D. McBride making and filing an affidavit that the appeal taken by her was not taken for the purpose of delay, but that justice might be done; and filing bond.

In the circuit court the defendant moved to dismiss the appeal because it was taken by Lena D. McBride, and she was not a party to the action, and the State had no right to appeal. The motion was overruled; and the defendant was tried and found guilty of bastardy, and judgment was rendered against him.

In the course of the trial it was shown that one Mann testified in the trial before the county court, which was on the 26th of July, 1907, and after that trial went to the State of Oklahoma, and about a week before the trial in the circuit court, which was on the 6th of October, 1908, a witness received a letter from him saying he was in Oklahoma. Upon this showing a witness, Nelson, who heard his testimony, was allowed, over the objection of the defendant, to testify what the testimony of Mann was in the trial before the county court. The defendant has appealed to this court.

The proceeding in this case was in the name of the State. It is a civil proceeding. Chambers v. State, 45 Ark. 56; Pearce v. State, 55 Ark. 387, 18 S.W. 380. An appeal can be taken by the party aggrieved from the judgment of the county court to the circuit court. Kirby's Digest, § 489. But appellant says that the prosecuting witness could not take the appeal. Let that be as it may, the appeal was taken. The State, through its prosecuting attorney, ratified the appeal and adopted it as its own. It has been held that a party may adopt a suit brought in his name without his consent. Hardware Co. v. Deere, Mansur & Co., 53 Ark. 140, 144, and Craig v. Twoney, 14 Gray 486, cited therein. We see no reason why an appeal cannot be adopted in the same manner.

But the appellant contends that, "if the State had the right of appeal, some one one with authority to bind the State, or to represent it, should have made the affidavit." This is not true. The defendant is required to make the affidavit in such cases, when he appeals, but the State is not. Section 7777, of Kirby's Digest, provides: "The State shall not be required or ruled to give security for costs in any case," and section 7778 provides: "It shall not be requisite for the State or any officer thereof to swear to any petition, bill, answer or proceeding in chancery or to any application, pleading or proceeding at law, and such bills, petitions, answers, applications, pleadings or proceedings shall have the like effect as if the same were duly verified by affidavit, as in case of private persons." The filing of an affidavit is a proceeding. Wilson v. Macklin, 7 Neb. 50, 52. The effect of the last section is to relieve the State of the necessity of making an affidavit in any civil proceeding.

According to Vaughan v. State, 58 Ark. 353, 371, 24 S.W. 885, the foundation laid for the admission...