165 Ind. 369 | Ind. | 1905
Lead Opinion
The relatrix instituted against appellant a proceeding in bastardy before the mayor of the city of Bloomington, which resulted in appellant’s being bound over to the'circuit court. In the latter court appellant filed a motion to dismiss the action for want of jurisdiction over his person and the subject-matter of the action, and for other reasons challenging the power of the mayor, as an examining court, to hear the case. The motion was overruled. There was a verdict and judgment against appellant.
waiver of his right to do so at a subsequent stage of the proceeding, or in the circuit court. Louisville, etc., R. Co. v. Power (1889), 119 Ind. 269, 271.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
In 1734 Lord Hardwicke arbitrarily, in Rex v. Reading, 7 How. St. Tr. 259, 296, in a filiation proceeding—that is, to charge a bastard’s father with its support—declared that a wife was a competent witness to prove the adultery between herself and the defendant, because the secrecy of the act would admit of no other proof; but that it was improper, on account of the interest of the wife in relieving her husband of the burden, to charge the maintenance of the child against the defendant, upon the mother’s sole and uncorroborated testimony of the non-access of the husband. 3 Wigmore, Evidence, §2063. This declaration of Lord Hardwicke was accepted and followed by the courts of England down to 1777, when Lord Mansfield, in Goodright v. Moss, Cowp. 591, announced as the law of England, founded in decency, morality and policy, that neither husband nor
Under the doctrine of Lord Mansfield a married mother’s testimony was no longer a question of corroboration, but one of competency in relation to access of the husband. It was a doctrine which, as against husband and wife, conclusively presumed the legitimacy of the child, but recognized the wife’s right to testify to the illicit connection, to the birth of the child before marriage, or within a month after marriage; but denied her the right to be heard to say that her husband was continuously absent in the army for two years next before the birth of the child.
“Such an inconsistency,” says Prof. Wigmore, in his treatise on evidence, “is obviously untenable. * * * The truth is that these high-sounding ‘decencies’ and ‘moralities’ are mere pharisaical afterthoughts, invented to explain an otherwise incomprehensible rule, and having no support in the established facts and policies of our law. There never was any true precedent for the rule; and there is just as little reason of policy to maintain it.” 3 Wigmore, Evidence, §2064.
There has been much diversity among the American courts as to which of the two English rules was the sounder. In the early part of the last century the tide was decidedly in favor of the Ilardwicke view, while later on the Mansfield rule seems to have attracted the most attention and found the most favor among the courts in states where the matter has not been regulated by statute.
The law being thus unsettled when our state government was organized, the legislature at its second session somewhat extended the Mansfield rule by the passage of an act which 'effectually closed the door against prosecutions for bastardy by married women, by providing for such prosecutions by unmarried women only. Acts 1818, p. 229; Smith v. State (1836), 4 Blackf. 188. The operation of this Indiana rule
In the case of Cuppy v. State, ex rel., supra, it is said: “At common law, a married woman was not a competent witness to prove non-access by the husband, but our statute has declared That the mother of the child, if of sound mind, shall be a competent witness.’ 2 Gr. & H., §3, p. 625. A witness declared competent by statute is to be regarded as any other witness, and restrictions imposed by the comm on law can not be applied as restricting her testimony, in the face of the express letter of the statute.”
This construction of the act of 1852 having been promulgated prior to the revision of 1881, the legislature at the
What we have already said disposes of the second proposition.
The statute which dispenses with corroboration as an essential to recovery, also makes the married mother a witness, generally, in her own prosecution for bastardy, and her credibility on every issuable fact is left to the jury.
We are now strengthened in our view that the original opinion correctly stated the law.
Petition for rehearing overruled.