Cross v. People

10 Mich. 24 | Mich. | 1862

Campbell J.:

The first error assigned is that no complaint was made by Harriet Donaldson, nor was any accusation and examina'tion taken in writing under oath of the said Harriet before the justice who assumed to act.

The statute does not contemplate any complaint distinct from the “ accusation and examination in writing under oath.’’ R. S. 1846, p. 189. Inasmuch as the case shows no other such accusation and examination than that of Harriet Donaldson, and that contains all the necessary facts required by law to be enumerated, we do not think that the action of her father outside of and in addition to her complaint can in any way affect its validity. It ■may be regarded as matter of surplusage. It preceded her complaint, and the latter is complete without it. The-objection that the complaint does not appear to have been sworn to before the justice is also unfounded. Where it appears in the body of the instrument to have been taken on oath before the justice, there is no force in the objection that his certificate at the foot does not also contain the words “before me,’’ whether the objection would have been valid or not otherwise — a point we are not called on to decide.

The next objection is that no issue was formed in the Circuit Court to be presented to the jury. The statute declares that “the issue to the jury shall be whether the defendant is guilty or not guilty.” The charge contained, in the complaint is required to give time and place, and it is evident the statute designed that this should be the-formal accusation, and the only one for any purpose. If the defendant did not admit the charge, it was to be left to the jury. There was no occasion for any formal issue therefore, as the law defined it, and a trial could not be had upon any special one. The proceedings are not designed to be in the regular form of common law prosecutions,, and a statutory issue exists whenever the defendant fails, to admit the charge (see section 4).

We see therefore no error in any of the proceedings whereby the verdict of the jury can be vitiated.

The order of maintenance, however, is not sustainable^ The statute makes it the duty of the Court upon a Verdict of guilty to make an order directing in what manner the defendant with the assistance of the mother shall stand chargeable with the maintenance of the child. The form in which the order here is • entered makes the liability to, support the child’ joint throughout, and does not point out what amount the defendant shall pay himself. While it was probably designed by the Court that he should furnish the money and the mother take care of the child, yet the order can hardly be made to bear that construction, as it stands. It must point out bis duty and liability expressly; and until that is done there is nothing to be •enforced.

The order of the Circuit Court must be quashed, and the cause must he remitted for the entry of a proper order •upon the verdict. No costs will he awarded.

The other Justices concurred.