Dyer v. Huff , 43 Me. 255 ( 1857 )

Cutting, J.

The statute of 1856, chapter 266, entitled “An act additional in relation to witnesses,” was not intended to effect any of the then existing statutes of the state, but was designed to change the rule of the common law, which excluded parties of record, and those having any interest in the event of the suit, from testifying. It was only an enlargement, as its title imports,, of certain acts, admitting certain persons to give evidence in cases where by the common law, they were held incompetent, such as inhabitants of cities, towns and plantations, and members of certain corporations. The act contains no repealing section, which is usually inserted, when in conflict with a pre-existing statute. Its most ardent advocates did not mean by its provisions to exclude a person from being a witness, who was before admissible either by statute or the common law. With what propriety, then, can it be contended, that the eighth section of chapter 131 of E. S., allowing the complainant, under certain circumstances to be a witness, has been repealed ? The only answer which the counsel for the respondent can give, is, that it was repealed in order to allow the putative father in all cases an opportunity to escape; and such would be the inevitable consequence; for by our decisions unless the complainant can first testify, the respondent, however guilty, must be discharged; then no evidence, not even his confessions, are admissible against him.

But, says counsel, bastardy implies an offence against tho criminal law, and a party cannot be a witness in such a suit, unless the defendant shall offer himself as a witness, and my client does not elect so to do, because, otherwise, no evidence can by any possibility be produced against him. It cannot be inferred that the legislature of 1856 entertained any such idea.

The respondent, on his own motion, was admitted to testify, and even if such admission was erroneous, he has no just cause of complaint.

As to the instructions requested by the respondent’s counsel, and given or refused by the presiding judge, we perceive no evidence reported in the case upon which to base any such requests, and for aught that appears they wore purely hypothetical.

Exceptions overruled, and judgment on the verdict.