Bradford v. Paul , 18 Me. 30 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

In prosecutions under the bastardy act, the mother of the child is an interested party, but is, upon certain conditions, from the necessity of the case, made a competent witness. That she should accuse the party charged, in the time of her travail, before delivery, has been repeatedly held to be one of those conditions. And that she shall continue constant in such accusation, is equally required by the statute. Both are placed upon the same ground, in the leading case of Drowne v. Stimpson, 2 Mass. 441. As one of the prerequisites to her admission as a witness, Parsons C. J. there says, “ she must have continued constant in her accusation, or at least, it must not appear that she has been inconstant.” The same principle is adopted and confirmed in Maxwell v. Hardy, 8 Pick. 561. And it was in that case held, that the constancy, required to render her competent, must be from the time she has made her accusation in a solemn form, either in the time of her travail, or on oath before the Justice. The question of the competency of a witness, which is preliminary in its character, must, from the necessity of the case, be decided by the Court. And it has been expressly held, that an objection of the kind raised here, forms no exception to the rule. M'Managil v. Ross, 20 Pick. 99.

There was in this case direct proof, that the complainant had not been constant, after her delivery, and after her accusation, made under oath. The witness, by whom her want of constancy was proved, appeared to have made declarations, conflicting with her oath upon another fact, but the truth of her testimony upon this fact, was sustained by others. The Judge was satisfied, that she had not continued constant. And he had a right to decide this fact. It was like the • objection of interest to a witness. Whether it exist or not, must be decided by the Court. The bur-then of proof is upon him who raises the objection, but whether proved or not, is referred to the Judge. And if it was open to this court to revise his judgment upon this point, we are not prepared to say, that it appears to us, thqt he decided erroneously.

Exceptions overruled.