Laws

A bastardy complaint was not Post Date: Wed, 30 Jul 2008 23:47:31 +0000
In pro- ceedings under the Bastardy Act be- fore the justice of the peace to whom the complaint is made, such justice only acts as committing magistrate; and the statutes in regard to change of venue in cases before justices of the peace do not apply to prosecutions for bastard Y Duffies v State, 7 Wi S 672 1 Rice v Chapin, 10 Met (Mas S) 5; Kennedy v Shea, no Mas S 152 Discretion to Allow the Filing of Sup- plemental Complaint. When a copy erf the accusation, warrant, and proceed- ings before the court or magistrate to whom the bastardy complaint was made is filed in the Superior Court, that court then has jurisdiction of the action, and may in its discretion allow the supplemental and more formal complaint to be filed at any subse- quent ter M Reed v Haskins, 116 Mas S 198 Omission of Supplemental Complaint. A bastardy complaint was not made to the District Court till after the birth of the child, but it contained an aver- ment of every fact necessary to charge the respondent.

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Formerly it was necessary Post Date: Wed, 30 Jul 2008 23:35:51 +0000
At the trial in the Superior Court on appeal there was a verdict of guilty, after which and be- fore judgment the defendant filed a motion in arrest of judgment, on^the ground that no supplemental com- plaint had been filed and that the trial without one was erroRIt was held that there was no occasion to require the formality of a new complaint to give the Superior Court jurisdiction ; that the objection was not seasonably taken, and the omission to insist upon the objection before verdict was a waiver of it, and that the motion was properly overrule d Lenahen v Des- mond, 150 Mas S 292 New Hampshire and Connecticut In RRv J M. 3 N H 135, Rich- ardson, CJ, says that it has never been the practice in New Hampshire to file a new complaint after the birth of the child, as in Massachusett S That such is the practice in Connec- ticut see Penfield v Norton, i Root (Con N) 345 2 Rice -v Chapin, 10 Met (Mas S) 5; Jones v Thompson, 8 Allen (Mas S) Allegation that Mother Accused Defend- ant. Formerly it was necessary that the supplemental complaint or dec- laration should contain an averment not only that the mother had been de- livered of a bastard child of which the defendant was the father, but also that she had accused him in the time of her travail, and had continued con- stant in such accusatio N Drowne v Stimpson,2 Mas S 444; Rice v Chapin, 10 Met (Mas S) 5; Foster v, Beatty, i Me 304; Loring v O'Donnell, 12 Me 27 But in Massachusetts by later statutes this is not now require d Bowers v Wood, 143 Mas S 182 Sufficiency of Complaint.

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Pen- field v Norton, i Post Date: Wed, 30 Jul 2008 23:23:44 +0000
A supple- mentary complaint set forth all the former proceedings in which the com- plainant alleged that the respondent begot her with child at S, on or about a time-mentione d in the kitchen need not be sworn to, but may be signed by complainant's attor- ne Y 1 It may also be amende d 2 b CONTINUANCE S Continuances may be granted by the trial court from term to term upon proper application therefor, as in other case S 3 See article CONTINUANCE S C PLEADING S In bastardy proceedings in the trial court it seems that there is no necessity for a formal issue, 4 nor that there of a certain dwelling-hous e It also alleged that on a certain day she was delivered of a male child, born alive and a bastard, and that she accuses the defendant of being the father of the child, and that he did beget her with said child in said S, "as was al- leged in the aforesaid complaint and is hereinafter recite d" Held, that the allegations of the supplementary com- plaint were sufficient. Burt v Ayers, 116 Mas S 263 A discrepancy, in the complainant's preliminary examination by the mag- istrate, between the statement of time when the child was begotten and the time set out in her declaration or sup- plemental complaint to the trial court constitutes no conflict in the plead- ing, and is not a fatal defect to the proces S Sayles v Fanning, 13 Gray (Mas S) 538; Kaler v Tufts, 81 Me 63 1 At least in Massachusett S Sabine v Jones, 119 Mas S 167; Burt v Ayers, 116 Mas S 263 2 Jones v Thompson, 8 Allen (Mas S) 334 A supplemental complaint filed in the trial court which fails to sufficient- ly state the proceedings before the magistrate may be amended by filing a new complaint supplying the neces- sary averment S Hawes v Gustin, 2 Allen (Mas S) 402 As to Nan e The trial court may al- low the amendment of the complaint by inserting the initial letter of the defendant's middle na Me Bailey v Chesley, 10 Cus H (Mas S) 284 3 Porter v State, 23 Ohio St 320 Absent Wit nesse S It is error to refuse the defendant a continuance, upon a sufficient application therefor, on the ground of absent witnesse S Powell v State, 96 Ind 108 Where the defendant had continued the case over one term of the Circuit Court, and, although he knew that a certain witness might be material, had taken no means to summon him until a few days before the trial, when the witness had left the state to avoid be- ing summoned, it was held that an application for a continuance was properly denied, especially where the witness, if present, could not have been compelled to testify to any of the matters which the defendant expected to prove by hi M Dingman v State, State, 48 Wi S 485 Child not yet Bor N That the child was born is a necessary averment in a prosecution for bastardy before the tria L And as the complaint is often made before the child is born, yet the court will continue the cause until the child is born, and then allow the com- plainant to add that fact by way of supplement to her complaint. Pen- field v Norton, i Root (Con N) 345 But see RRv J M, 3 N H 135 Absence of Defendant in the Arm Y The defendant in a bastardy case is not entitled to a continuance on ac- count of his absence as a soldier in the armies of Kentucky and the United State S Chandler v Co M, 4 Mete (Ky)68 To Perfect Change of Venu e When a change of venue is desired by the de- fendant or has been granted by the circuit judge from a county court to a Circuit Court, the defendant is entitled to a continuance at the first trial term thereafter, so as to allow him to make the order granting the change of venue effectual by filing the same at least thirty days before the next term of the court.

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Malson v State, 75 Ind Post Date: Wed, 30 Jul 2008 23:05:08 +0000
Riggen v Co M, 3 Bush (Ky) 493- Absence of MotheRThe county court has authority to continue the case in the absence of the mother, who had been cited to appear; and where it seems that the defendant himself in- duced her contumacy, he has no just cause to complain of the persevering refusal of the county court to dismiss the proceedings, either at her instance or in consequence of her nonappear- ance or apparent abandonment of her own rights under the statut e Turner v Co M, iB Mo N (Ky) 206 4 Cross v People, 10 Mich 24; Smith -v State, 73 Ala N Necessity of Answer or Joinder of should be pleadings, other than the mere denial by the defendant of the charge, to authorize the court to submit the question of paternity to a trial jur Y 1 d DEFENSES (i) Compromise and Settlement, The mother of a bastard child may, subject to some restrictions in certain juris- dictions, make a settlement with the putative father and dismiss the prosecution, if one has been commenced ; 2 and, in general, Issu e A bastardy case may be tried without any answer being filed or issue joined therein, no provision being made in the Bastardy Act for the filing of any answer or joinder of any issue by the defendant in such suits; and, under 2 Rev Stat1876, 34, p 612, all matters of defense, except the statute of limitations, set-off, and matter in abatement, may be given in evidence without ple A De Priest v State, 68 Ind 569 Sufficiency of Issue Illinoi S Where there is a sworn complaint before the court which shows the complete char- acter of the charge against the de- fendant, and the record shows a plea of not guilty, the issue thus made up, though not as formal as it might be, is sufficient. People v Woodside, 72 111 407 1 Barnett v State, 16 Ark 530; Cross v People, 10 Mich 24; Hutch- inson v State, 19 Neb 262 Indiana The Statute of Indiana does not, in terms, require a written or formal plea or answer in the trial of a bastardy case; and where there has been a trial by jury it will be pre- sumed that the defendant denied the charge; and he cannot, on appeal to the Supreme Court, object to the judg- ment against him because the tran- script of the record shows no formal plea filed by him and none entered of record on his behalf McReynolds v State, 52 Ind 391 Right to Plead any Pertinent MatTer In Florida it has been held that a denial by the court of the defendant's right to plead any pertinent matter of law or fact in avoidance of or in an- swer to the complaint and its material allegations, is erroRAndrew g v Catherine A, 16 Fla 830 2 Martin v State, 62 Ala 119; Wil- son v Pike County Judge, 18 Ala 758- But in Co M v Davis, 6 Bush (Ky) 295, it was held that after a prosecu- tion has been commenced and the tr ; al court has acquired jurisdiction over it the mother has no legal con- trol over the case, and it is error to dismiss it on a motion by her for that purpos e When Settlement may be Mad e In Wisconsin it has been decided that while a complaint in bastardy is still pending in a justice's court the par- ties may make a settlement, subject to the approval of the supervisors, to be entered upon the justice's docket; and if the defendant gives a satisfactory bond of indemnity to the supervisors, the justice should discharge hi M Getzlaff v Seliger, 43 Wi S 297 In an old Ohio case it was said that the liability of the father for the sup- port of a bastard child can only be settled by the mother while the com- plaint is pending before the justice; and the agreement must be in his presence, and a memorandum thereof entered on his docket, the defendant giving security that the public shall not be burdened with the support of the chil d Perkins v Mobley, 4 Ohio St 669 Compromise of Minor Relatri X A minor relatrix has not unrestricted right to compromise and dismiss a bastardy proceeding, the court being authorized to examine into compro- mises made with infants, and to ap- prove or reject them; and a defendant in such proceeding has no right to demand that the written statement of such a relatrix, that she had compro- mised with him and desired the prose- cution to be dismissed, should be placed on record without an investiga- tion by the court. Malson v State, 75 Ind 142 Objection to Discharge When may be Mad e The objection in writing by the overseers of the poor to a settle- ment or discharge of a complaint in bastardy authorized by Me Rev Stat, c - 97 8, is seasonably made if made at the trial of the respondent on the complaint.

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State v Dongher, 47 Min Post Date: Wed, 30 Jul 2008 22:50:38 +0000
Eames v Gray, 61 Me 405- Married Woma N The fact that the a settlement and release by the mother, if an adult, will be a bar to a prosecution by her for the maintenance of the chil d 1 But complainant is a married woman will not prevent the parties from entering into a compromis e Parker v Way, 15 N H 50 Contract in Eespect to the Child As a BaRIn the absence of any settlement or release in respect of a matter of bastardy a contract on the part of the putative father with the mother, in an- ticipation of the birth of the child, that the father would adopt the child and make it his heir, would be no bar to a bastardy prosecution or to an action for damages in respect theret O Wal- lace v Rappleye, 103 111 229 1 State v Nobl e 70 Iowa 174, following Black Hawk County v Cot- ter, 32 Iowa 125 Discharge for Maintenance of Child Unborn Birth of Twin S If a female gives a discharge of all demands for maintenance of a child of which she is pregnant, and afterwards it turns out that she was pregnant with two, the discharge will bar her remed Y Spal- ding v Fitch, i Root (Con N) 319 Delay in Giving Bon d A reasonable and fair compromise settlement of a bastardy proceeding, under Ohio Rev Stat, 5617, is not invalidated by ten months' delay in giving the required bond, and is a complete bar to a sec- ond prosecutio N State v Van Vor- his, I Toledo Le g News (Ohio) 117 Fraud in Obtaining Compromis e A plea of compromise may be defeated by showing that such compromise or settlement was obtained by the fraud of the accuse d Kezartee v Cartmell, 31 Ohio St 522; Hendrix v People, 9 111 App 42; Gurley v People, 31 111 App 465 Collusiveness of Settlement. It is competent for a person charged with bastardy to compromise the matter with the woman alleged to have be- come pregnant; and if the party so charged, upon being arrested under a warrant issued in such proceeding, shall enter upon a settlement not in- duced by fraud or oppression, such settlement will be conclusive and binding upon the partie S Heaps v Dunham, 95 111 583 Effect of Payments where Release not an Absolute BaRA release executed by the mother of a bastard child in favor of the putative father, made before the birth of the child and before the institution of bastardy proceedings, was held not to be an absolute bar to such proceedings, though the court may give to the payments made by the defendant to the mother such con- sideration as they may be entitled to in adjusting the terms of the judg- ment. State v Dongher, 47 Min N 436 A payment to the mother made by the reputed father of her bastard child, in full satisfaction for the main- tenance of such child, may, if made before any order for that purpose, very properly influence the court in determining what further sum he shall pay, if it happens that the child is supported by her; but it cannot op- erate as a bar to the power of the court to make whatever order in the premises the maintenance of the child, or a just compensation to the person who may have maintained the child, may requir e State v Harshaw, 4 Dev B (N Car) 371 Settlement out of Court KentucKy No agreement made out of court be- tween the mother and the putative father of a bastard child will bar a proceeding under the statute to compel the father to give security for the sup- port of the chil d Co M v Turner, 4 Dana (Ky) 512 Settlement by Consent of Overseer of PooRA settlement with the mother of a bastard child, made with the con- sent of the overseer of the poor of the town where the mother resides, is no bar to a prosecution by the overseer of the poor of the town of her legal settlement, which town is liable to be- come chargeable for the support of the chil d Hale v Turner, 29 Vt 350 Release Given by Mother while a MinoRA release of the defendant by the mother of all liability for the sup- port of a bastard child in considera- tion of a sum of money paid her, made while she was a minor, is not binding on the state, even though fairly en- tered int O The question whether'the complaining witness, at the time of making the settlement, represented rhat she was of age cannot be consid- ered on appeal where such question was not raised in the court belo W State v Baker (Iowa, 1893), 56 N W Rep 425 A release given, before she is of ag e by the statutes of some states an acknowledgment of satisfaction by the prosecutrix of provision made for the support of the child must be entered of record to bar further prosecutio N 1 (2) Former Adjudicatio N In general an adjudication in a pro- ceeding against a man charged with being the father of a bastard child is a bar to a subsequent prosecution on the same charge ; * by the mother of a bastard child is not binding upon her, and if after- wards repudiated by her, cannot be in- sisted upon to bar her right S Wilson v Pike County Judge, 18 Ala 757 Production of Release after a Jury has been Impanele d Where a jury has been impaneled to try the question of the paternity of the child in a bastardy prosecution, the court, on production of a release from the mother of the child, is not bound to dismiss the pro- ceedings, but may refuse to try the question of release; and the defend- ant may then insist on his release by way of defense before the jury, and re- quest of the court appropriate charges to the jur Y Wilson v Pike County Judge, 18 Ala 757 1 Harness v State, 57 Ind I And an admission in writing that such provision has been made which had not been entered of record, though containing a request that it be so en- tered, is no bar to a subsequent prose- cutio N Fisher v State, 65 Ind 51 Compromise Made out of Court.

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fe- male before a justice Post Date: Wed, 30 Jul 2008 22:39:36 +0000
A compromise of a bastardy prosecution made out of court is no defense to the action unless ratified and confirmed in court and entered of record with the consent of the prosecutri X Reeves v State, 37 Ind 441; Pickler v State, 18 Ind 266; State v Wilson, 21 Ind Necessity of Specially Pleading Com- promis e Where a compromise is made out of court, to be available such compromise must be specially pleaded by the Defendant State v Reynearson, 19 Ind 211; State v Wil- son, 16 Ind 134; Carter v State, 32 Ind 404 Promise of Marriage as Consideration of Settlement. Where the relatrix in open court acknowledged that satis- factory provision had been made for the maintenance of the bastard child, and an entry was made thereof and the prosecution was dismissed, she cannot afterwards file a complaint and a motion to set aside the entry and dismissal on the ground that the con- sideration of her consent to such en- try was the promise of the defendant to marry her, which she relied on, but that he had failed and refused to ful- fil his promise, and had never in- tended to do So Noble v State, 39 Ind 352 Settlement and Compromise as Defense Sufficiency of AnsweRIn a proceed- ing to secure the support of a bastard child, an answer is good which al- leges that the relatrix had previously instituted a similar proceeding before a justice for the support of the same child, and that the defendant had paid the relatrix a sum of money, and that she was a fit person to have and use the money, and that thereupon she had, on the justice's docket, entered of record an admission that provision for the maintenance of the child had been made to her satisfaction and had dismissed the action, though it be not shown that the defendant was served with process in the former cas e Gipe v State, 40 Ind 158 See also Carter v State, 32 Ind 404 2 Burnett v Co M, 4 TB Mo N (Ky) 106 Acquittal by Two Justice S Where a person charged with being the father of a bastard child is, on the trial be- fore two justices, acquitted, such ac- quittal is a conclusive bar to a second proceeding against him respecting the same matTer Thayer v Overseers of Poor, 5 Hill ( N Y) 443, correcting People v Tompkins Ge N Session, 19 Wen d ( N Y) 154 Collusiveness of Justice's Adjudica- tio N Where a complaint has been made before a justice, and, upon a proper hearing and full examination, the justice has adjudged that there is not probable cause to believe that the accused is the father of the child in question, such adjudication is final and conclusive, and may be pleaded in bar to a subsequent trial of the same issue before another justice; and hence a writ of prohibition will not be granted to prevent the second justice from proceeding with the caus e State v Braun, 31 Wi S 600 Judgment of Dismissal on Settlement but it seems that, unless the judgment is on the merits, it cannot be pleaded in baR1 with Prosecutri X Where, in the ab- sence of the defendant in a bastardy prosecution instituted by an infant .fe- male before a justice of the peace, the defendant having fled before arrest, his friends pay her a sum of money, and it is then shown to the justice by the complainant and her attorney that suitable provision has been made for the child, and thereupon a judgment of dismissal is entered, such judgment is a bar to a future prosecution, unless it appears that the court was misled and deceived as to the provision made for the chil d Maker v State, 123 Ind 378 Acquittal on Former Trial for Fornica- tion and Adulter Y That the defendant was acquitted on a former trial for fornication and adultery with the mother of the alleged bastard is not a good plea of autrefois acquit to an in- dictment for bastard Y Davis v State, 58 Ga 170 Where a bastard child was begotten in one county and born in another, the indictment and conviction of the father for fornication in the county where the child was begotten is no bar to his indictment for bastardy in the county where the child was bor N Co M v Lloyd, 141 Pa St 28 Proceedings in Another Tow N Pro- ceedings taken in the township where the mother last resided twelve months, on the application of the overseer of the poor of that township, are no bar to a prosecution for bastardy in the town where the child was born, taken by the overseer of that tow N McCoy v Overseers of Poor, 37 N J Discontinuance of Case after Appeal from Order of Filiatio N Where, after an appeal to the general sessions from an order of filiation and sustenance made by two justices of the peace pur- suant to the provisions of the revised statutes concerning the support of bastards, the case was discontinued by the overseers of the poor, who made the complaint, the overseers of any other town which is or is likely to become chargeable may institute new proceedings, notwithstanding the for- mer ordeRStowell v Overseers of Poor, 5 De N ( N Y) 98 1 Nicholson v State, 72 Ala 176; Marston v Jenness, n N H 162; Davis -v State, 6 Blackf (Ind) 494 The hearing before a justice of the peace in a bastardy prosecution is of a preliminary nature, and an adjudica- tion by him discharging the defendant is no bar to a subsequent complaint and hearing before the same or an- other justice upon the same charg e In re Parker, 44 Ka N 279 Discharge because of Absence of Prose- cutri X Where the defendant is dis- charged because of the absence of the prosecuting witness, the judgment of discharge, not being upon the merits, is no bar to further prosecutio N State v Harbour, 17 Ind 526 Dismissal of Another Proceeding on Same Charge Frau d Proceedings in bastardy were instituted before a justice of the peace, and, the warrant having been returned " not found," the cause was heard in the defendant's absence and certified to the Circuit Court.

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If the time Post Date: Wed, 30 Jul 2008 22:24:07 +0000
In the Circuit Court the defend- ant, having been arrested, appeared and answered, setting up as a defense that, after the cause had been certified to the Circuit Court, the relatrix had instituted proceedings against him be- fore another justic echarging him with being the father of the same child, in which latter proceeding the relatrix had filed an admission that suitable provision for the maintenance of the child had been made, and that by leave of court the cause was dismisse d The facts alleged by the relatrix in reply showed that the defendant, his father, his attorney, and the justice before whom the pretended judg- ment was rendered, acting for the de- fendant with the fraudulent purpose of defeating the action, deceived and misled the relatrix, an ignorant, weak-minded child, and, without the knowledge of the prosecuting attor- ney, induced her to institute another prosecution, and by further misrepre- sentations and deceit procured her to acknowledge that provision had been made for the support of the child, when in fact no provision had been mad e The defendant demurred to the repl Y Held, that the demurrer was properly overruled, the second proceeding being a nullity, and not a bar to the action in the Circuit Court. e HEARIN g The trial of a bastardy cause is usually gov- erned by the rules regulating the trial of ordinary civil actions ; * and in most of the states the case must be tried by a jury, if a jury be properly demanded by either part Y 2 It is not neces- Ice v State, 123 Ind 590 See also Gresley v State, 123 Ind 72 Dismissal for Want of Jurisdictio N A former proceeding in bastardy which was dismissed for want of ju- risdiction is no bar to a second pro- ceeding based upon the same charg e State v Giles, 103 N Car 391 Effect of Judgment on Recognizance Default A judgment rendered on a recognizance for failing to appear is no bar to another prosecution for the same offens e Co M v Thompson, 3 Litt (Ky)284 Acquittal on Incorrect Warrant. If the time of the birth of the child be in- correctly stated in the warrant, an ac- quittal upon it will not bar a subse- quent proceeding on a warrant with the time correctly state d Burnett v Co M, 4 TB Mo N (Ky) 106 1 State -v Brown, 44 Ind 329; State v Evans, 19 Ind 92; Stone v State, 33 Ind 538; Alley v State, 76 Ind 94 Form of Oath to be Administered to the Jur Y The proper oath to be ad- ministered to the jury in a bastard prosecution is the form prescribed by Ge N Stat, C 72, 5, for the trial of any civil action or proceedin g State v Worthingham, 23 Min N 528 Where Defendant is an Infant.

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Jones, 6 Month Post Date: Wed, 30 Jul 2008 22:12:07 +0000
Where defendant is an infant the court should appoint a guardian ad /item to defend hi M Chandler v Co M, 4 Mete (Ky) 68 Trial with Eleven Juror S Where, during the trial of a bastardy case in the Circuit Court, the parties stipu- lated in open court to try the cause with eleven jurors, and the twelfth juror was excused by consent, it was held that this did not render the trial and verdict illega L Rindskopf v State, 34 Wi S 217 Examining Magistrate as Attorney for Complainant. The prosecution should not be dismissed by the trial court because the attorney appearing there for the complainant was the justice before whom the complaint was insti- tuted and complainant's examination take N Reardon v Russell, 9 Gray (Mas S) 366; Kenney v Driscoll, I Allen (Mas S) 210 Arraignment of Defendant It is not necessary to arraign the de- fendant on the tria L He answers to the complaint, and thence the pro- ceedings are conducted as in civil ac- tion S W M H T v State, 18 Fla 884 Trial in Absence of MotheROrdi- narily the court has discretionary power to proceed with the trial in the absence of the plaintiff, the defendant demanding a trial; and the reviewing court cannot control the discretio N Smith . Jones, 6 Month L Bul L (Ohio) 124 But where the statute contem- plates the presence of the mother in all cases at the trial the cause cannot be tried without her presence and tes- timon Y Baxter S Columbia T P, 16 Ohio 57 Waiver of Objection to Denial of Motion to Quas H Where, after the overruling of a motion to quash the complaint, the defendant pleaded not guilty, and went to trial on the merits, he thereby waived his right to object further to the rulin g State v John- son (Iowa, 1893).

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1 The Instructions Post Date: Wed, 30 Jul 2008 21:52:19 +0000
56 N W Rep 404 2 Alley v State, 76 Ind 94 Indiana Appearance by Attorne Y Although present by attorney only, the defendant may demand and have a jury trial, cross-examine witnesses, and introduce witnesses for the de- fens e Stone v State, 33 Ind 538 Necessity of Denying Charge to Entitle Defendant to Jur Y If the defendant fails to deny the charge in the Circuit Court he is not entitled to a trial by jury; and where in such a case there is no answer filed, and the record does not show a plea entered, but the cause is tried by a jury, the Supreme Court presumes in favor of the correct ac- tion of the court below that the defendant made such denial; and the failure to enter the denial upon record in such case is not such an error as should reverse the judgment. Wolf v State, ii Ind 231 Alabama The Act of 1811 as modified by the Act of 1816, only requires an issue and a trial by jury to ascertain the paternity of a bastard child, where the reputed father de- mands the M Trawick v Davis, 4 Ala sary that the trial should be on the original papers of the pro- ceedings before the magistrate ; attested copies are sufficient. 1 The Instructions to the jury may deal with the object of the pro- ceeding, the paternity of the child, the effect of a compromise, etc 2 Dilatory Objection S It is too late to object to defects or irregulari- ties in the initiatory proceedings after appearance in the trial court and a plea entered, 3 or a request for a continuance grant- KentucKy A proceeding against the putative father of a bastard child is a civil proceeding, and a jury is not necessary or proper in suc H Scant- land v Co M, 6 J J Marsh (Ky) 585 Wisconsin Power of Defendant to Waive Examination of Relatrix and a Trial by Jur Y The defendant may waive his right to examine the prose- cutrix in person on the trial in the Circuit Court, and consent that her evidence, returned by the justice, be read instead; and he may also waive his right to a trial by jury, and consent to a trial by the court.

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The proceedings in the lower Post Date: Wed, 30 Jul 2008 21:33:51 +0000
Jerdee v State, 36 Wi S 170 Tennessee In an early case it was held that the county court may, if it see fit, have the aid of a jury to try the issue in a bastardy case, without such proceeding constituting an error for which the Supreme Court would revers e Kirkpatrick -v State, Meigs (Tenn) 124 Affidavit of Defendant Suffi- cienc Y The affidavit of a person charged with having begotten a bas- tard child was made in these words, " that he was able to prove to the satisfaction of every one that he was not the father of said child; that the charge was wholly without founda- tion, and made out of malice towards him; and that justice required an issue should be made up to try the truth of the charg e" Held, that the affidavit was sufficient to entitle the party charged to an issue to try the truth of the charg e (Act 1822, C 29, I) State v Coatney, 8 Yerg (Tenn) 210 Effect of Affidavit Right to a Jur Y In Goddard v State, 2 Yerg (Tenn) 96, it was held that the county court could hear the proof and determine the matter in a bastardy case; and the affidavit of the defendant that he is not the father of the child will entitle him to a jury to try that fa Ct (A Ct , C 29) 1 Kennedy -v Shea, no Mas S 152; Biggane v Ross, 126 Mas S 233; Sisco v Harmon, 9 Vt 129 2 Object of Proceeding S The jury may be instructed that the object of the proceeding is to protect the county or town from the expense of support- ing an illegitimate chil d State v Pratt, 40 Iowa 631 Paternity of Chil d When the only question seriously controverted at the trial is that of the paternity of the child, all other facts essential to a re- covery being established by uncon- tradicted evidence, and practically con- ceded, an instruction which directs the attention of the jury to that ques- tion is harmless to the Defendant Harper v State, 101 Ind 109 Inference from Compromis e The compromise of a bastardy prosecution is not an admission by the defendant of his guilt; and the jury should, on request, be instructed that they are not authorized to infer the guilt of defendant because he entered into a compromis e Martin v State, 62 Ala 119 3 Pruitt v County Ct Judge, 16 Ala 705; Cooper S Littlefield, 45 Me 549 Benton v Starr, 58 Con N 285; State v Lee, 7 Ire d (N Car) 265 As objecting to the jurisdiction of the justice who bound defendant over, Thompson v Kenney, no Mas S 317; or because of his incompetency to act, on the ground of interest, Hoit v Cooper, 41 N H 115; Gilmanton v Ham, 38 N H i N An objection to the form of the com- plaint, in that it has no venue, is not available on a motion in arrest of judg- ment. Fisher v State, 65 Ind 51 If the facts charged in the complaint are defectively stated, such complaint cannot, after verdict, be objected to on motion in arreSt Robie v McNiece, 7 Vt 419 Irregularities in Lower Court. The proceedings in the lower court are merely to compel the appearance of the defendant in the Superior Court; e d 1 Nor are objections to the proceedings on the trial, to the rulings upon which no exceptions were taken, available after verdi Ct 58 See article APPEARANCES, Effect of a General Ap- pearance, Vo L I I, p 639 Y VERDI Ct It is not necessary that the issue should be found in the words of the statute ; it is sufficient if the verdict is, on the whole, responsive to the charge in the proceeding S 3 and where a supplemental complaint is filed in the Superior Court it is too late, after an appearance has been entered, to object either to irregulari- ties in the lower court or to the juris- diction of such court.

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