Libby v. StateLibby v. State
- Reporters:
- , , ,
- Before:
- Harrison
Opinion by
HARRISON, C.This аction was begun upon the complaint and affidavit of Anna May Kiser of Craig county against J. W. Libby for the support of her bastard child of whom she alleged J. W. Libby was the father. The cause was triеd and judgment rendered against J. W. Libby requiring him to pay the sum of $75 into court and the sum of $5 per month thereаfter until such child arrived at the age of twelve years, unless further ordered by the court, and from such judgment, and the orders overruling motion in arrest of judgment and motion for new trial, defendant apрealed to this court.
This cause was first filed in the Criminal Court of Appeals and the question is raisеd as to the jurisdiction of that court to decide the questions involved. But such contentions arе answered by the fact that it has been transferred from the Criminal Court of Appeals to this cоurt for determination.
The first assignment of error presented and argued is that the lower court еrred in overruling defendant’s demurrer to the complaint. One of the questions presented in this prоposition is that prior to statehood there was no bastardy statute in force in the Indian Tеrritory; that, the child having been born April 14, 1908, conception must have taken place prior to statehood and at a time when there was no bastardy statute in force in the Indian Territоry, and that therefore this statute, as to that offense, is ex post facto. But that is neither the object nor the effect of *605 the statute. Section 4401, Rev. Laws 1910, which is the sаme as section 2997 of the territorial statute, reads as follows:
“AYhenever any woman residing in аny county of this state is delivered of a bastard child, or is pregnant with a child which if born alive will be a bastard, complaint may be made in writing duly verified, by any person to the county court of the county where such woman resides, stating that fact and charging the proper person with being thе father thereof. The proceeding shall be entitled in the name of the state against thе accused as defendant.”
It will be observed that the state of pregnancy or birth of the сhild is the fact which fixes the responsibility for support upon the father, and not the date of сonception. Hence the statute is in no sense ex post facto.
The next material question argued is that thе complaint neither states facts sufficient to constitute a cause of action nor sufficient to give the court jurisdiction of the subject-matter. AVith this contention we cannot agrеe. The complaint reads in words and figures as follows:
“In the County Court of Craig County, Oklahoma.
“State of Oklahoma, Plaintiff, v. J. W. Libby, Defendant.
“Affidavit.
“Personally appearing before me, Theo D. B. Erear, county judge of the county of Craig and state of Oklahoma, on this the 4th day оf May, A. D. 1908, and first being duly sworn on her oath, one Anna May Kiser states and avers that on the 14th day of April, A. D. 1908, shе was delivered of a male bastard child and that the said child is likely to be chargeable tо the county of Craig for its support, and that one J. AY. Libby had gotten her with child of the said bastard child аnd is the father of said child.
“And affiant further says that she is a resident of the county of Craig, state of Oklаhoma.
“[Signed] ANNA May KiseR.
“Subscribed and sworn to before me this the 4th day of May, A. D. 1908.
“Theo. D. B. EeeaR, County Judge.”
This affidavit discloses that she is a resident of Craig county, that she is the mother of the bastard child, and that J. AY. Libby is the father of such child; and the affidavit is sworn to. This *606 is all that is required to give the court jurisdiction of the subject-matter, and, though the complaint might have been made fuller and more explicit, yet it avers all the essential facts necessary to constitute a complaint under this statute, and we think the demurrer was properly overruled.
The third assignment argued is that the court charged the jury that the guilt of defendant cоuld be established by a mere preponderance of the evidence. It is argued:
“That the consequences of a conviction are such.,as usually follow the conviction fоr a crime, and therefore that the rule of reasonable doubt should have applied.”
This contention cannot be sustained. In Bell v. Territory, 8 Okla. 75, 56 Pac. 863, In re Comstock, 10 Okla. 299, 61 Pac. 921, and Anderson v. State, ante, 140 Pac. 1142, this character of cases is held to be in the nature of a civil proceeding. Henсe a fair preponderance is all that is necessary. But if this were not the law, and if it were the law that the complainant should maintain her case by proof that defendant was thе father of her child beyond a reasonable doubt, the evidence in this case is sufficient; if thе law had required the jury to find the defendant guilty beyond a reasonable doubt, and they had so found undеr this record, and the issue had been fairly submitted to the jury, we would not disturb the verdict. Complaint, however, is made that the court erred in giving certain instructions and in refusing to give certain instructions. Howevеr, we have examined the instructions set out in plaintiff in error’s brief and in the bill of exceptions, and find no material error either in giving the instructions given by the court or in refusing those offered by defendant.
We think upon the whole that the judgment should be affirmed.
By the Court: It is so ordered.