State v. Lavin , 80 Iowa 555 ( 1890 )

Given, J. — 1-.

1. Instruction: exceptions to: evidence of on appeal. The correctness of the abstracts being questioned, we have examined the transcript with care. Appellant assigns as error the giving of each and all of the paragraphs of the court’s charge, and the refusal to give the anq second instructions asked. The discussion is addressed mainly to the giving of paragraph number 7\ of the court’s charge, and the refusal to give instruction number 1 asked by appellant. Appellee contends that the giving of paragraph 7-|- was not excepted to at the time it was given, and that no grounds are stated for the exception afterwards taken in the motion for new trial, and,' therefore, the error assigned upon the giving of said instruction cannot be considered. It appears by the transcript that an entry was made upon the margin of each paragraph of the court’s charge, “Given, and defendant excepts.” Each of these entries, except that on paragraph 7\, is signed by the judge. The. bill of exceptions, after reciting that the court upon its own motion gave the instructions numbers 1 to 9 inclusive, recites: “To the giving of which, and each of them, defendant at the time duly excepted in writing.” Appellee contends that 7|- and number 1, refused, are substantially the sanie, and that, at the time the instructions were given, appellant was content with the giving of number 7%. The comparison of these two paragraphs shows a marked difference. We think the record fairly shows that the giving of paragraph was duly excepted to at the time, and that by oversight the judge omitted to sign the exception on the margin. If it were otherwise he would not certify as he does in the bill of exceptions.

2. Bastardy: evidence: offer of compromise. II. Paragraph of the court’s charge is as follows : “An offer of compromise should not be regarded as an admission of guilt, but if, from the circumstances under which it was made, and facts connected with the transaction, you deem it a circumstance tending to establish defendant’s guilt, or his innocence, you can consider such fact, and give it such weight as you deem it entitled to.” The instruction asked by appellant, and refused, is as follows : “Any compromise offered to the complaining witness by the defendant, or his attorney, cannot operate against the defendant in the trial of this cause, and is not to be considered as an admission of guilt on his part.” The courts uniformly hold that offers made for the purpose of compromise or settlement are not admissions of guilt or liability. They may be made to avoid litigation, and not from -a consciousness of guilt or liability; “for,” as Lord Mansfield observed, “it must be permitted to men to buy their peace without prejudice to them, if the offer should not succeed ; and such offers are made to stop litigation, without regard to the question whether anything is due or not.” The law favors compromise between litigants, and to admit such offers as evidence of liability would not only discourage, but prevent, the settlement of disputes. Offers made for the purpose of compromise are excluded as evidence of guilt or liability, not only because of the nature of such evidence, but upon grounds of public policy. See 1 Greenl. Ev., sec. 192; West v. Smith, 101 U. S. 263; 2 Whart. Ev., sec. 1090; Richards v. Noyes, 44 Wis. 609; Daniels v. Woonsockett, 11 R. I. 4; Draper v. Inhabitants of Hatfield, 124 Mass. 53. This rule does not exclude admissions of particular facts, but only the offer that is made by way of compromise, as to pay a sum of money, or the like. Admissions of particular facts are admissible, though made during a treaty of compromise, but offers to do something by way of compromise are not admissible as evidence of liability. West v. Smith, supra; Sanborn v. Neilson, 4 N. H. 501. Appellee does not question the rule as we have announced it, nor the correctness of the instruction refused, but maintains that the rule was substantially embraced in the paragraph given. Appellee also contends that the evidence of offers of compromise was introduced without objection by appellant, and that he cannot, therefore, raise the objection by instructions. The instruction given is not in harmony with the rule, and is materially different from that refused. While by it the jury were told that an offer of compromise should not be regarded as an admission of guilt, it was left to them to say, from the circumstances under which the offer was made, and the facts connected with it, whether they deemed it (the offer) a circumstance tending to establish guilt or innocence.

3. —: —: —: waiver. III. Complainant testified, in chief, on behalf of the state, without objection, that appellant admitted to her that he was the father of her child, anq that he gave her five dollars to procure a picture of the child for him. Her father, called by. the state, testified that appellant had offered him twenty-five dollars in settlement of his claim for doctor’s bill, and for taking care of compláinant during her confinement. Appellant, called in his own behalf, testified that, pending this action, he had offered to pay complainant.a sum of money in settlement thereof, and that his statements to her and his offer to her father were parts of the same transaction. Thus the fact of the offer of compromise was brought before the jury. It was only by appellant’s testimony that the statements to complainant and the offer to her father were shown to have any connection with an offer to compromise this action, and appellant was not in position to object to the state’s testimony as relating to a settlement, because offer of settlement did not appear therefrom. The case is different from Stale v. Pratt, 20 Iowa, 267, and Becker v. Becker, 45 Iowa, 239. In those cases the grounds for objecting to the testimony were apparent at the time when it was given, while in this it was only made apparent by rebutting evidence. A motion to withdraw the testimony as to offer of settlement could not have been sustained, as there was a controversy whether the statements to complainant and the offer to her father were in connection with an offer of settlement. The fact that an offer of compromise had been made being thus brought into the case, it was the duty of the court to give proper instructions with reference thereto.

4. —: —: financial condition of complain. IV. Testimony was introduced to show the financial condition of the complainant and of her father; also that a deed had been made to William Weber and to Florence Hazel'Weber, the cpii(j_ Appellant complains of the overruling of his objection to the testimony as to the financial condition of the complainant’s father, and the refusal of the court to allow him to prove the contents of the deed to William Weber and the child, William Weber having refused to produce the same. Chapter 56, title 25, Code, under which this action is prosecuted, is • essentiallyo different from chapter 58, title 12, of the Revision. Under the latter, if the accused was found to be the father of the child, he was adjudged to give security to the county, conditioned to save that and every other county in the state from all charges towards the maintenance of the child, while no such provision is contained in the former. The only issue under the present statute is guilty or not guilty, and, if found guilty, the only judgment that can be rendered is to charge him with the maintenance of the child in such sum or sums, and in such manner, as the court shall direct, and with the costs of the suit. Parents owe it to the public and to their children that they furnish the necessary support to their children, whether they be legitimate or illegitimate. The purpose of proceedings like this is to determine whether the accused is in fact the father of an illegitimate child, and if so to charge him with its support. His liability to be so charged rests solely upon the fact that he is the father of the child, and not upon the ability or inability of others to support the child, •or whether it is likely to become a public charge. No security is required, under the present statute, to indemnify the public, nor does the statute make the liability •of the accused to depend upon the ability • of the mother, or any other person, or the estate of the child, to furnish the needed support. The court erred in overruling appellant’s objection to the testimony as to the financial condition of complainant and her father; but did not err in refusing to allow appellant to prove the •contents of the deed, as evidence of the existence of such a deed should not have been admitted.

5. —: married woman: presumption of paternity. Y. It appearing without dispute that the complainant was a married woman at the time the child was conceived, the court instructed the jury as : “ The law presumes that a child conceived during lawful wedlock of its mother is legitimate, and not a bastard. Therefore, the plaintiff must show that the complainant did not cohabit with her husband during the time when the child might have been conceived, and that during that time the husband had no opportunity to have, and did not have, sexual intercourse with complainant, and, if this has not been satisfactorily proved, you must find ■the defendant not guilty ; but if you find that the husband did not then cohabit with, nor have sexual inter•course with, nor opportunity to have such intercourse with, her, and you further find that the plaintiff has •established the allegations of the complaint by a preponderance of the evidence, then your verdict should be ‘ Guilty.’ ” The following definition, found in 2 American & English Encyclopedia of Law, is fully sustained by the authorities : “ Bastards are persons born out of wedlock, lawful or unlawful, or not within competent time after termination of coverture; or if born out of wedlock, whose parents do not afterwards intermarry, and the father acknowledges them, or who are born in •wedlock when procreation by the husband is impossible.” A child born during marriage may be proved a ¡bastard by evidence of the husband’a impotency, or by proof of non-access to his wife. Com. v. Stricker, 1 Browne (Pa.) App. 47; State v. Britt, 78 N. C. 439; Wilson v. Babb, 18 S. C. 59; Herring v. Goodson, 43 Miss. 392; Hargrave v. Hargrave, 9 Beav. 552; Banbury Peerage Case, 1 Sim. & S. 153; Bussom v. Forsyth, 32 N. J. Eq. 277; Haworth v. Gill, 30 Ohio St. 627; Sale v. Crutchfield, 3 Bush, 636, 647; Van Aernam v. Van Aernam, 1 Barb. Ch. 378; Shuler v. Bull, 15 S. C. 421. The most clear and conclusive evidence of non-access is required. Watls v. Owens, 62 Wis. 512; 22 N. W. Rep. 720; Egbert v. Greenwalt, 44 Mich. 245; 6 N. W. Rep. 654; Boykin v. Boykin, 70 N. C. 262; Chamberlain v. People, 23 N. Y. 88; Sullivan v. Kelly, 3 Allen, 148; Cross v. Cross, 3 Paige, 139; State v. Shumpert, 1 S. C. 85; Wright v. Hicks, 12 Ga. 155; Shuler v. Bull, 15 S. C. 421; Kleinert v. Ehlers, 38 Pa. St. 439; Herring v. Goodson, 43 Miss. 392; Phillips v. Allen, 2 Allen, 453; Wilson v. Babb, 18 S. C. 59; Gaines v. Hennen, 24 How. 553. In State v. McDowell, 101 N. C. 735; 7 S. E. Rep. 785, it is said : “When a child is born in wedlock, the law presumes it to be legitimate, and, unless born under such circumstances as to show that the husband could not have begotten it, this presumption is conclusive; but the presumption may be rebutted by the facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access.” The instruction given is fully sustained by the authorities.

6. -: evidence: unduct of complaint. "VI. The second instruction asked by appellant, and refused, does not state the law cori’ectly. It is not allowable to consider unchaste conduct of ™e complainant with other men than the defendant, unless it has a bearing upon the question of the paternity of the child. Lewd conduct of the complainant is no defense, unless it tends to show that another than defendant is, or may be, the father of the child. State v. Pratt, 40 Iowa, 631; State v. Woodworth, 65 Iowa, 141; State v. Borie, 79 Iowa, 605. The sixth paragraph, of the court’s charge fairly presented this subject to the jury, though not as explicitly- as might have been. For the errors mentioned, the judgment of the district court must be reversed, and, as the other errors assigned will not arise on a retrial, it is unnecessary that they be further noticed. Reversed.