Hawes v. Gustin , 84 Mass. 402 ( 1861 )

Dewey, J.

The juror objected to was incompetent to act, and, for this reason, the objection having been seasonably taken, we think a new trial must be had. The provisions, as they now exist, in reference to prosecutions under the act for the maintenance of bastard children, under the changes introduced by St. 1859, c. 239, and Gen. Sts. c. 72, are such as to create a direct interest in the inhabitants of the town where the complainant resides and has her settlement. Such interest, as a general rule, disqualifies an inhabitant from acting as a juror. The excepted cases have been those where, from the necessity of the case, such jurors or other officers must act, or there would exist no provision for enforcing the laws, or the cases where direct legislation has removed the objection. To some extent this has been done, as in the case of indictments and penal actions for the recovery of any suzn of mozzey or other thing forfeited. Gen. Sts. c. 132, § 30.

But there is no general exemption of jurors from this objection in other cases. The Gen. Sts. c. 122, § 13, removes the objection only as to the city of Boston, and while exempting judges and magistrates from the objection on account of their being inhabitants of any town or city interested, obviously omits the case of jurors. This leaves jurors, upon the hearing of a case like the present, obnoxious to the objection of being incompetent to act as such.

The examination in the present case was properly before a civil justice. St. 1851, c. 96, § 1. Gen. Sts. c. 72, § 13.

No objection can be taken on the trial in the superior court for any supposed defect in the form of the warrant for the original arrest of the party. There should be filed an attested copy of the record of the proceedings before Mr. Chapin, which however may be done at any time hereafter before the trial. The objections to the complaint filed in the superior court, on the ground that it did not state sufficiently the proceedings before Mr. Chapin, may be obviated by amending the same in the superior court, by leave of that court.

Exceptions sustained.

At the second trial in the superior court, before Fose, J., the complainant was called as a witness, and was allowed to testify, under objection, that she in the time of her travail accused the defendant of being the father of her child. The judge, however, before the introduction of any further evidence, ruled, upon reconsideration, that the evidence was incompetent, and directed the answer to be stricken out, saying that it would not be regarded by the jury as a part of the evidence in the case.

Sophronia Hawes was called as a witness for the complainant, and testified, under objection, that the complainant in the time of her travail accused the defendant of being the father of the child. No evidence was offered to show that the complainant, upon her examination and accusation taken before the magistrate, accused the defendant of being the father of the child.

The jury returned a verdict of guilty, and the defendant alleged exceptions.

Williams, for the defendant.

Bacon, for the complainant.

Dewey, J.

The Gen. Sts. c. 72, authorizing proceedings to charge the father of a bastard child with contributing to its maintenance, have materially changed the provisions found in the Rev. Sts. c. 49.

In the particular of requiring the mother to accuse -the putative father in the time of her "travail, the necessity of proof of such fact no longer exists. It is competent evidence, and may be used as corroborating the testimony of the mother. Such being its purpose, it should of course more properly be shown by the testimony of other persons. If any error was committed by the presiding judge in allowing the mother in the first instance to testify to this fact, it was at once corrected, and the answer of the witness as to the inquiry stricken out; and the jury were instructed not to regard this as a part of the evidence in the case. This it was competent for the court to do, though it is a power to be exercised very cautiously, and accompanied by such statements as will lead the jury fully to understand that the evidence is not to be allowed to have any effect upon their minds.

The evidence of Sophronia Hawes was competent, as corroborative testimony of the mother. Gen. Sts. c. 72, § 8.

It is now urged that the court should have settled the preliminary question, whether the mother had accused the same person of being the father of the child upon her examination and complaint before the magistrate, and had been constant in her accusation. We do not perceive by the bill of exceptions that this objection was taken in the court below. The objection taken to the evidence of this witness was the general one as to its competency. We see no ground for sustaining that objection.

Exceptions overruled.