Gilmanton v. Ham, 38 N.H. 108

Gilmanton v. Ham

38 N.H. 108 | N.H. | 1859

Fowler, J.

By tbe provisions of tbe 68th chapter of tbe Bevised Statutes, [Comp. Laws 162,] preliminary proceedings to secure tbe maintenance of bastard children may be instituted before any justice of the .peace in tire State, and tbe preliminary examination may be bad before any justice of tbe peace for tbe county wherein tbe alleged offence is charged to have been committed, or in which tbe putative father may reside. The objections now taken to tbe original proceedings before tbe magistrates are not that they bad not general jurisdiction by law of tbe subject matters on which they severally acted, but that their action was irregular and unauthorized, under tbe peculiar circumstances of tbe present case, and that they were disqualified to act by reason of their being citizens of Gilmanton, and so interested to save that town harmless from tbe costs to which it would have been liable in tbe event of tbe failure of tbe prosecution.

Tbe first objection taken must have been apparent on tbe face of tbe proceedings, and tbe second must almost necessarily have been known to the defendant and bis counsel, at tbe time of tbe preliminary examination. Yet *111no suggestion, of any irregularity or disqualification on the part of the magistrates, or either of them, was made at that examination. The defendant gave bond for his appearance at the next term of the Court of Common Pleas„ according to order, thus distinctly recognizing the authority of the examining magistrate. At the first term of the Common Pleas he appeared and answered to the action, without making any objection, thereby assenting, by implication at least, to the regularity and validity of the proceedings in that tribunal. And it is fairly to be inferred that at the same time he must have furnished a new bond in compliance with the order of the Common Pleas, since it was clearly the duty of that court, under the interpretation long since given to that statute, to order a new bond to be given. Dunbarton v. Palfrey, 27 N. H. (7 Fost.) 171.

"With these facts, necessary implications and inferences, before us, the objections taken at the second term of the Common Pleas, and renewed and insisted upon at the trial in the Supreme Court, seem to fall substantially within the principle recognized by this court in Warren v. Glynn, 87 N. H. (6 Fogg) 340, which was, that in general where jurisdiction of the subject matter of a proceeding, or authority to act, exists in a tribunal, and the only objection to its exercise is one intended for the benefit and protection of the party complaining thereof, such objection must be taken at the earliest practicable opportunity after the party or his counsel are aware of its existence, or it will be regarded as waived by the omission or neglect to urge it seasonably. It was also holden in that case that a party, cognizant in the earlier stages of a proceeding, before a tribunal otherwise competent, of an objection that might have been fatal to the validity thereof, could not be permitted to lie by and take the chances of a favorable result, and, after an adverse one had been reached, avail himself of that objection to avoid its conse*112quences ; so that, where the magistrate before whom the complaint was made and the preliminary examination had in a prosecution by a town for bastardy, was a resident citizen and tax-payer of the complainant town, and this fact was known to the defendant and his counsel at the time of the preliminary examination, but they designedly omitted to make any objection on that account until after various proceedings in courts of competent authority, havng jurisdiction of the cause, it was then too late to insist upon the objection, and it must be considered to have ■been waived by the neglect to urge it seasonably.

The only substantial difference between the facts in Warren v. Glynn and those of the present case, seems to be that there it appeared affirmatively that the defendant and his counsel had knowledge of the facts on which the objection afterwards taken rested, at the date of the previous proceedings, while here it is not alleged or shown that they did not have such knowledge; leaving the fair and necessary presumption, as we think, under the circumstances of the case, that they must have had it. Where an objection to the validity of proceedings is apparent on the face of the papers, or of such a nature that it is hardly possible it should not have been known to the party and his counsel at the period of the earlier proceedings, in the absence of satisfactory proof that the objection was taken at the earliest practicable opportunity after it was known to the party or his counsel, we think it must be holden to have been waived by neglect to take it seasonably, precisely as if it were shown affirmatively to have been known and purposely omitted to be urged.

We are, therefore, of opinion that both the objections taken to the validity of tbe preliminary proceedings before the magistrate were rightly overruled.

We are unable to discover any well founded objection to the course of argument pursued by the plaintiff’s counsel, to which exception was taken. The praotice of bring*113ing before the jury, on trials for bastardy, the child whose paternity is sought to be established, when living, has been almost universal in this State, from the earliest recollection of the oldest practitioners, and we are not informed that any objection was ever made to it, as there does not seem to have been in the present instance. The paternity of the child was the question in controversy; the child itself was, therefore, in some respects, the subject matter of the litigation, and as such might properly be exhibited to and viewed by the jury, to enable them to judge from its appearance, complexion, and features, whether any inference could legitimately be drawn therefrom as to its paternity. In her examination as a witness the mother called the attention of the jury to the child then before them, as the offspring of the illicit intercourse between herself and the defendant. The child thus became inseparably associated in the minds of the jurors with the testimony they had heard; they could hardly consider and weigh the one without reference to the other. Nor can we readily conceive how the plaintiff'’s counsel could well argue the credibility of the mother’s testimony without some allusion to the child, with which it was associated and upon which it in some sort depended. The exhibition and identification of the child were incidents of her testimony not to be passed over in silence. If the child were referred to at all, its general appearance, its complexion and features might properly be commented upon; and we think, under the well established physiological law that like begets like, and that generally there is a resemblance, more or less strong and striking, between the parent and his child, it was a fair matter of argument before the jury by the counsel on both sides, whether or not there had been anything in the complexion, appearance and features of the child which the witness had produced and identified before them, tending to indicate its other parent. The counsel had a right to argue all the evidence, and its inci*114dents as well; and among those incidents were the production and identification of the child, and its complexion, appearance and features, as observed by the jury, and by them compared with those of the defendant. Where the jury may find from the evidence, however slight it may be, and however improbable such a result may be, that the state of facts is such as contended for, the court cannot restrain counsel in arguing upon such possible result. Logan v. Monroe, 7 Shep. 257.

We see no sufficient cause for setting aside the verdict, in the conduct of the juror in drinking a small quantity of brandy, which, upon the evidence before us, he must be holden to have taken only and strictly as a medicine, previously prescribed by his physician, as a remedy for the disease under which he was manifestly laboring at the time, and not as a beverage. It was taken by him alone, apart from and without the knowledge of any of his fellows, in good faith-, as a remedial agent for a serious and troublesome malady. The facts found by the case do not seem to us to differ substantially in effect from what they would have been if the juror had carried in his pocket a vial of medicine for the relief of the difficulty under ■which he was suffering, and had taken a dose of it on one of the numerous occasions when he was obliged, as the consequence of his illness, to leave the jury-room. His disease was real and manifest, and not feigned; the juror was not in the habit of using spirituous liquors; he requested the officer to obtain the small quantity of brandy for him, as the medicine prescribed by his physician for the disease under which he was palpably suffering; he drank it privately as a medicine, and not as a beverage, after his mind was made up in the ease; and it is impossible to conceive how, under the circumstances, the defendant can have suffered from the influence of the liquor upon the judgment of the juror, or what injurious influence can be exerted on the community as the result of such an occurrence. *115There would not seem to have been anything in the conduct of the juror, as disclosed by the case, which can rightfully be regarded as imprudent or injudicious, much less deserving the severe reprehension and rebuke which would be involved in setting aside the verdict on that account.

With these views of the invalidity of the various objections urged against the proceedings in the present ease, all the exceptions taken must be overruled, and judgment be rendered on the verdict for the plaintiff.

Exceptions overruled, and judgment for the plaintiff.