State ex rel. of Bell v. Allen

| Ind. | Mar 24, 1837

Blackford, J.

This is a case of bastardy certified by a justice of the peace to the Circuit Court.

The transcript of the justice states that Sarah Bell, air unmarried woman of Clinton county, on the 20th of September, 1834, made oath before him, that she had been delivered of a bastard child on the 13th of June .preceding, and that -Jesse Allen was the father of the child,. The transcript also states, that, upon this accusation, a warrant issued against Allen, who appeared and denied the charge; and that after the complainant had been examined by the justice and cross-examined by the defendant, the justice adjudged the defendant to be the father of the child. The transcript also states, that the justice bound the defendant in a recognisance for his appearance at the next term of the Circuit Court to answer the accusation.

The Circuit Court, on the defendant’s motion, discharged the defendant from the recognisance.

The first ground taken by the defendant to sustain the judgment below is, that the justice’s transcript does not show that the defendant, after the justice had decided against him, failed to compensate the complainant, &c. as prescribed by the statute. This position is not tenable. The defendant had the right, after the justice’s decision against him, to have the proceedings stayed, by making compensation tó the mother, &c. But as the proceedings were not stayed, and the justice’s transcript does not show the compensation to have been made, &c., we must presume, in favour of the proceeding of the justice, that the defendant did not compensate the- mother, &c., conformably to the statute. If the compensation was made, the bond given, &c. before the taking of the recognisanee, the defendant is not without remedy. He may plead the fact in bar, in the Circuit Court, of the accusation .against him.

The defendant contends, in the second place, that the complainant’s affidavit, made before the justice, is defective for not stating that she resided in the county, that the child born there, and that' it was then alive. There was no necessity for the accusation to state these facts. The statute does not require it. The justice’s transcript states, that the complainant was resident in the county, and it must be presumed that the child was there born and was then alive. If the facts were otherwise, and were material, the defendant should have shown what they were.

W. Herod and C. B. Smith, for the state'. D. Wallace and A. S. White, for the defendant.

The judgment of the Circuit Court, in discharging the defendant from the recognisance, is erroneous. ’ ■

It appears that after the defendant was discharged, the state moved for a forfeiture of. the recognisance. That motion was correctly overruled. 'It was too late, after the defendant’s discharge, to have his recognisance forfeited. The motion, however, may now be renewed,

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.