25 Fla. 268 | Fla. | 1889
In a proceeding under the statute relating to bastardy the jury gave a verdict against appellant on the issues made, and he was condemned by the judgment of the court to pay fifty dollars annually for ten years for the support of the child. He asks this court to reverse the judgment because of errors committed during the trial, on which he founded a motion for a new trial, that was denied. The chief of these alleged errors are that it was wrong to charge the jury that they must find their verdict on the preponderance of the evidence, and that the defendant was not entitled to the benefit of a reasonable doubt as in criminal cases, and wrong not to permit a witness for the defendant to testify what the prosecutrix said in a conversation he had with her in the early part of 1886 about her condition.
We think the court did not err in giving the charges in respect to preponderance of evidence and reasonable doubt. While the decisions of this court in construing the bastardy statute have characterized the proceeding it authorizes as quasi criminal, it is only because the preliminary steps before a magistrate to get the accused bound over to the Circuit Court for trial makes it so. When the case reaches that court it loses its criminal aspect, and is henceforth a
In the Circuit Court, then, it must be tried as a civil action, and the consideration aud effect of evidence must be governed by the rules applicable to such actions. Of those
But we think the court erred in not permitting the wit-mess to testify to a conversation between him and the prosecutrix in regard to her condition. The time of the conversation, according to the dates giveu, was not long after the date she had specified as that on which defendant had impregnated her; and while we are not informed of the object for which the question was put, it was presumably to draw out previous statements made by her inconsistent with the charge against defendant. The question in the absence of the usual predicate, if intended to impeach her testimony, would not have been proper. But for the very reason that the action being tried was a civil action, in which the rules of evidence governing criminal cases were not applicable, and in which she was a party, thereby in a position to render her declarations in respect to the matters in issue legal evidence, the question should have been allowed. If she had not been a witness her declarations could have been brought out, and it would be a hardship upon defendant^ and unjust to him, to deprive him of evidence otherwise available, merely because she was a witness. This view is sustained by Welch vs. Clark, 50 Ver. 386, and McCoy vs. State, supra.
Another ground of the motion for a uew trial was that
There was no evidence on that subject and it is not a matter of law, wherefore we think it was error to give such a charge.
The ease must be remanded for a new trial, hence we refrain from comment as to its merits on the evidence.