92 Me. 125 | Me. | 1898
In the prosecution of the defendant under the statute for the maintenance of bastard children, the presiding judge gave the following instruction to the jury respecting the complainant’s constancy in her accusation: “If she has not been constant and has made other accusations and still, if you are satisfied by a preponderance of the testimony that he is the father of the child, then he would be guilty.”
The relief sought by this proceeding is given solely by express provisions of the statute, which prescribe the mode of prosecution and to some éxtent, the nature of the evidence requisite to hold the accused answerable to thé charge. To authorize an adjudication in her favor, the complainant must show a compliance on her part with all the essential requirements of the statute.
After making specific provisions in regard to the complainant’s accusation, her examination on oath respecting the accused, and the
Prior to the general legislation of 1864 allowing parties to be witnesses in their own behalf, these two requirements of the statute respecting the accusation of the complainant at the time of her travail, and her constancy in such accusation, were uniformly held by the courts in this state and Massachusetts to be conditions precedent to the right of the complainant to testify as a witness. As might have been anticipated from their correlation in the statute, both of these conditions were placed upon the same ground and deemed prerequisites to the admission of the complainant as a witness. Foster v. Beaty, 1 Greenl. 804; Loring v. O’Donnell, 12 Maine, 27; Bradford v. Paul, 18 Maine, 30; Drowne v. Stimpson, 2 Mass. 441; Stiles v. Eastman, 21 Pick. 132; Rice v. Chapin, 10 Met. 5.
It has also been settled law in this state, both before and since the enactment of 1864 allowing parties to be witnesses, that proof of the accusation by the complainant at the time of her travail was indispensable to the success of her prosecution. Prior to the enactment of 1864, it was a prerequisite to the admission of the complainant as a witness, as well as a condition precedent to her right of prosecution. Loring v. O'Donnell, 12 Maine, 27. The effect of that general enactment was to make the complainant in such a case a competent witness'without preliminary proof of an accusation by her at the time of her travail, but such proof was still essential to the success of her prosecution. In Payne v. Gray, 56 Maine, 317, the court said in the opinion by Mr. Justice Walton; “We do not decide that it is now unnecessary for a
It has been seen that the accusation at the time of her.travail and constancy in such accusation, were equally required by the statute, and prior to 1864, were deemed alike indispensable.to her admission as a witness. The conclusion is-irresistible that they must both sustain the same -relation to the complainant’s right to prosecute. The accusation at the time of her travail is held to be a condition precedent, and constancy in such accusation must also be deemed a condition precedent to the maintenance of the suit.
It is important to observe, however, that the statute requirement is that the complainant should continue constant in the accusation against the defendant made upon oath before the magistrate and at the time of her travail. She is required to be constant in that accusation after it is made. The constancy contemplated by the statute does not relate to accusations or declarations made by the complainant prior to the formal accusation against the defendant made under oath before the magistrate. Burgess v. Bosworth, 23 Maine, 573; Maxwell v. Hardy, 8 Pick. 560. Proof of an accusation against some other person prior to such accusation under oath against the defendant, might affect the complainant’s credibility as a witness, but.it.would not be a bar to the maintenance of her suit. It would still be a question of fact for the jury'to determine, upon all the evidence, whether the defendant was the father of her child.
In this case it appears from the transcript of the testimony which, by agreement of the parties, is made a part of the bill of exceptions, that the evidence tending to show a want of “constancy” on the part of the complainant related to declarations made by her prior to the accusation upon oath against the defendant. There was an entire absence of any evidence worthy of con
¡Exceptions overruled.