Ex parte Donahoe

24 Neb. 66 | Neb. | 1888

Cobb, J.

This is an original application for a writ of habeas corpus to the sheriff of Douglas county.

The petitioner’s application shows that, on July 19,1887, Huida Nelson, an unmarried woman, charged him, under section 1 of an act entitled, “An act for the maintenance and support of illegitimate children,” Chap. 37, 374, Comp. Stat. 1885, with the paternity of her bastard, child. On his confession to the charge he was held to bail in $500 to the next term of the district court, and failing to comply, was committed. When the charge was called in the district court, November 11th, following, the putative father renewed his confession, an order of affiliation was made, which charged him. with the maintenance of the child in $100 yearly for fifteen years, ordered him to give security for the payment, and, in default, was committed to jail, there to remain vjntil he shall comply with the requirements of the court.”

On the 10th of December, following, pursuant to notice to the complaining witness and the county attorney of Douglas county, the petitioner was brought before the district court, took the insolvent debtor’s oath, submitted proof that he was a penniless day laborer with no estate in esse or posse, and was without income except from manual labor; that he had made diligent effort to give the security required to pay the money, without avail, and on this showing asked to be discharged from custody, but upon the complaining witness’ objection he was remanded to jail, and there remains.

This proceeding, under the statute, does not offer any remedy for imprisonment under it, but that of security to •comply with the order of the court, nor any alternative but that of payment of the amount to the complaining witness, the mother of the child. It is not an imprisonment in aid of execution for debt to bo discharged under section 557 of the code of civil procedure. It is not an imprisonment for debt, but to enforce the statutory penalty under a conviction of bastardy, involving a private injury and a public wrong, to be compounded only by the assent of the complaining witness, or satisfied by compliance with the terms of the statute.

The statute is not unconstitutional, and the imprisonment for bastardy is not an imprisonment for debt in contravention of section 20, article I. of the constitution of Nebraska. Cottrell’s Case, 13 Neb., 193. The petitioner, by his own representation, is shown to be in proper custody under the forms and provisions of law, for an offense confessed in open court. Nothing is withheld or unknown •of his caption and detention for this court to inquire of, nor is there any remedy, other than aequiesence and compliance with the law, for his discharge. The writ is denied.

Writ denied.

The other judges concur.