Burgess v. Bosworth ( 1844 )

The opinion of the Court was drawn up by

Whitman C. J,

The complainant, before accusing the defendant, had, under oath, before a magistrate, accused another man of being the father of the child of which she was pregnant. The statute requires, in order to her being admitted as a competent witness on the trial of the one accused, that she should have accused him, under oath before a magistrate, and also in the time of her travail, of being the father of the child, the filiation of which is sought to be established, and that she should have remained constant in her accusation. In Maxwell v. Hardy, 8 Pick. 560, it was decided, that the constancy, required by the statute, was to take place from and after either of those accusations; and that any statements, which she might have made before, as having charged the parentage of the child upon another person, &c. would not avail against her competency. If this be a correct exposition of the statute, and the statutes of Maine and Massachusetts, on this point, are precisely similar; it becomes a question whether the having previously charged the parentage upon another person, under oath, and in the same form in which she had accused the defendant, should be sufficient to exclude her from testifying. If the statute only contemplates that she should have remained constant after she had accused the defendant, then, in whatever form, and under whatever solemnities, she may have previously accused another, should make no difference. The language of Mr. C. J. Parker, in delivering the opinion, in the case cited, would apply with equal force, seemingly, to this case as to the one the Court were about deciding. He says that such previous statements may have been “ the result of terror or shame for her condition, or to have been produced by the threats or blandishments of her seducer.” Such terror, or threats, or blandishments might induce an accusation, under oath, and before a magistrate, in legal form, as well as without such a solemn proceeding. The only difference would be that the degree of influence in the one case must necessarily be greater, to produce the result, than in the other: and her credit would be more seriously affected in the one case than in the other; of which it would be the province of a jury to judge, in view of all the circumstances of the case.

On the whole we are of opinion, that, whatever may have been the form or manner of the accusation of any one else, by the complainant, anterior to the accusation of the defendant, it should be allowed only to affect her credibility, and not her competency.

Exceptions overruled.