Anonymous

37 Miss. 54 | Miss. | 1859

Harris, J.,

delivered the opinion of the court.

This is a proceeding under the act for the maintenance of bastard children. A jury and verdict for defendant in error in the Circuit Court, and writ of error to this court, appear in the record.

In the progress of the trial, plaintiff in error, by his counsel, on cross-examination of defendant in error, asked her, “ if she had ever before had sexual connection with any person.” (See Record, p. 6.) To this objection was made by counsel for defendant in error; when counsel for plaintiff in error proposed, in connection with this testimony, if answered in the negative, to offer proof of the improbability of the statement, that defendant in error was impregnated by one and the first act of sexual intercourse. The objection was sustained by the court, and exceptions filed to this ruling, which is the first error complained of here.

Generally, in trials for seduction, per quod servitium amisit, and on indictments for rape, questions of this character are inadmissible. The object of indulging parties in this latitude of inquiry, on cross-examination, is to inform the jury of the character of the witness whom they are ashed to believe. Inquiries having no tendency to this end are clearly inadmissible. 1. Greenleaf Ev. 8th edit. § 458, cases cited. The interests of justice do not require it, nor is the good of society promoted, by permitting the errors of a woman’s whole life (perhaps sorely repented of by her, though never forgiven by the community) to be dragged from her own lips, and perpetuated in judicial history, for the mere gratification of her seducer. It is a sufficient stigma upon the age, that while it consigns to unatonable infamy the inexperienced victim who has yielded herself to his gratification, he bears no part, in public estimation, or at least a very inconsiderable one, in the degradation, ruin, and life-long wretchedness he has produced. The State has a deep interest in the equality of punishments, as well as the inducements to reformation, in cases of this character; and the disparity of suffering, and inequality in social position, already existing, should neither be augmented nor countenanced by tribunals established to administer justice.

But in cases of bastardy, when the paternity of the child is the fact in issue, and the mother is introduced to establish that fact, while it is not competent 'to investigate her conduct or character, for her whole life, for chastity, this inquiry, if restricted to the proper time, is material and pertinent, and she will be held to answer. 1 Greenleaf’s Ev. § 458, note 1, on p. 597 (8th edition); Swift’s Ev. 81; McBride v. McBride, 4 Esp. 242; Bole v. Mill, 1 C. & P. 100; Rex v. Teal et al. 11 East, 307, 311.

If the question in this case had been confined to the period of conception, the inquiry would have been material, as tending to show that the real father could not be known. To ask “ if she had ever before had sexual connection with any person,” could in no manner necessarily show the innocence of plaintiff in error, or cast suspicion upon the testimony of defendant in error, if answered in the affirmative. And if answered in the negative, and the testimony had been adduced as proposed, to show that it was highly improbable that impregnation could be produced by the first act of coition, — such testimony would have been wholly inadmissible, as too uncertain, indefinite, and hypothetical, to form the basis of judicial action or investigation. The courts, in our opinion, have gone quite far enough in subjecting the life, liberty, and property of the citizen to the mere speculative opinions of men claiming to be experts in matters of science, whose confidence, in many cases, bears a direct similitude and ratio to their ignorance.

We are not disposed to extend this doctrine into the field of hypothetical conjecture and probability, and to give certainty as evidence, to that which, in its very nature, must be wholly uncertain and unsatisfactory; dependent on circumstances and conditions entirely secret, hidden, and unknown, as facts. And without a knowledge of which, neither science nor experience, however great, could afford us the remotest information. We think, therefore, the question and evidence proposed wmre properly excluded from the jury.

The second ground of error assigned proceeds on the assumption that this proceeding is to be regulated, at least to some extent, by the Act of 1822, Hutch. Code, p. 580. This is a mistake, we think. The proceeding is under the provisions of the new Code, chap. 24, p. 216, and is in strict conformity therewith. There was no error in the instruction complained of.

The last ground of error relied on is, that the verdict is against the decided preponderance of evidence. We do not agree with counsel in this view, but think the jury may have been warranted in so finding. It was a case involving the credibility of the witnesses : and circumstances are not wanting tending to sustain the view taken by the jury.

Judgment affirmed.