| Mich. | Jun 17, 1879

Graves, J.

The plaintiff having been condemned in a prosecution under the statute concerning bastardy, alleges error. . The complaint against him was by the woman, and it set forth the time and place -when and where the child was begotten, with particularity. She did not claim that there was any uncertainty or that she was not able to fix the place and the time also, within a day or two. *168She stated the time as the 25th or 26th of September, 1877, and the place as his father’s residence in Lock-port, St. Joseph county, and as helping to identify the occasion she stated further that his parents were away from home; that she had been sick and was not feeling well; and that the intercourse occurred in her bedroom. At the trial the judge allowed the accusation to be disregarded and permitted the prosecution to show that the act causing pregnancy was done several weeks earlier in another part of the house and under quite different circumstances. This was error. The party charged was entitled to assume that he would be tried on the accusation made, and not upon one in no manner disclosed to him by the papers.

It would be difficult to ascribe anything fair or just in the requirement of a formal charge if it could be wholly departed from in substance on the trial. It would be as much as saying the purpose of the law was to entrap the party, and not as the fact is, to determine whether the wrong imputed to him is true or not. No doubt proceedings under this statute should be free from technicalities, but it could not have been intended that the plainest safeguards against injustice should be cast aside. The accusation can never be more definite than the complainant is able to make it, but the law requires one to be made, and when made the other party is called on to meet it; but not to meet one which has not been previously asserted at all. And he may well decline to disprove what is not charged.

Complaint is also made of the judgment or order entered on the finding. It does not state to whom the money is required to be paid. As the prosecution was on the part of the woman, the order should have provided for payment to her or to the county superintendent of the poor, or both in some specified proportion. Comp. L., § 1979. The failure of the order to expressly direct some part of the child’s maintenance to be by the mother is not error. It provides what he shall do, and *169hence to wbat extent be miist- assist ber. Tbe duty rests upon ber, if able, to do wbat remains, and tbe statute does not contemplate a direct adjudication against ber in sucb proceeding to pay or provide means.

Tbe proceeding must be set aside.

Tbe other Justices concurred.