Carter v. State

32 Ind. 404 | Ind. | 1869

Ray, J.

Prosecution- for bastardy commenced before a justice of the peace. The defendant was recognized to the ■ court of common, pleas, where he filed an answer in two paragraphs; first, that before the commencement of the present proceeding, the relatrix filed her complaint and affidavit before Elias E; Tenney, a justice of the peace of said county, and caused the- arrest of said defendant on the identical charge of bastardy for which he is now prosecuted; that on the 21st day of September, 1868, the said relatrix and this defendant appeared before said justice, and the relatrix thereupon executed her admission in writing that provision had been made to her satisfaction for the support and maintenance of said bastard child, a copy of which written admission was filed, and she thereupon directed said justice to enter the same of record, which was done,.and,the cause was thereupon dismissed; that the same was voluntarily and freely executed, and for divers good and valuable considerations, and money paid, besides tbe amount stated in said agreement, and tbat this suit is for tbe same identical cause of action mentioned in said agreement. A full transcript of tbe proceedings before tbe justice is filed. A demurrer was filed to tbis answer. It is objected tbat no other consideration for tbe agreement can be proved than tbat stated jn tbe instrument. Tbe law is otherwise. McMahan v. Stewart, 23 Ind. 590.

F. Adkinson, for appellant. JR D. McMidlen, 1. M. Dunn, and J. Schwartz, for appellee.

Tbe seventeenth section of tbe act regulating prosecutions in case of bastardy, 2 G. & H. 628, provides tbat such an 'admission by tbe mother ,of tbe bastard child as is averred in this answer shall bar all further prosecutions for tbe same cause. Tbe answer was, therefore, sufficient.

Tbe only question tbat remains is, whether these facts could have been proved without plea.

Tbe sixth section of tbe act provides, tbat in all such prosecutions tbe trial and continuance of tbe cause in tbe justice’s court and circuit court, shall, except when otherwise provided, “ be governed by tbe law regulating civil suits ”—of course, tbe law regulating civil suits in tbe court where tbe cause may be pending. We cannot carry tbe practice befime a justice with tbe case into another court, unless tbe statute expressly requires it. Such was tbe view heretofore expressed by tbis court in The State, ex rel. Keen, v. Wilson, 16 Ind. 134, and The State, ex rel. Conner, v. Reynearson, 19 Ind. 211. Tbe demurrer should have been ovei’ruled to tbe first paragraph of tbe answer:. There was a second paragraph of answer also filed, but it failed to show tbat any prosecution bad been legally commenced, and a demurrer was properly sustained to it.

Judgment reversed, and cause remanded, with directions to overrule tbe demurx’er to tbe first paragraph of tbe defendant’s answer.