71 P. 572 | Kan. | 1903
The opinion of the court was delivered by
The controlling question presented here is, May an unmarried woman, who is an imbecile and incompetent to testify, institute a bastardy proceeding ? The proceeding' is purely statutory, and, being somewhat penal in its character and procedure, the statutory requirements must be strictly followed. The common law adds nothing to the right of action, and the only methods of enforcing it are those prescribed, or warranted, by the statute conferring the right. The general provisions of the civil and criminal codes cannot be applied except so far as the bastardy statute itself makes them applicable. So it has been held that no one but an unmarried woman can become the prosecuting witness in such prosecution, and no one can institute the proceeding except the, mother of the bastard child ; nor is there any provision allowing the prosecuting witness to be represented by guardian or next friend. Although brought in the name of the state upon a complaint, and the initial process is a warrant upon which the defendant is arrested, and although the county attorney is required to assist, still the prosecuting witness controls the prosecution, the settlement, and the dismissal of the proceedings. The county attorney has no authority to originate the process. His consent to a settlement is not necessary, and he cannot prevent any entry of satisfaction and dismissal by her. ( Willetts v. Jeffries, 5 Kan. 470; Gleason, Sheriff, v. Comm’rs of McPherson Co., 30 id.
Since she alone can originate, control and terminate the proceedings, is it possible that one without intelligence or understanding of its purpose and effect can d.o so? The statute, it is true, provides that “any unmarried woman,” etc., may institute an action, and "such terms without qualification are broad enough to include idiots and lunatics. There is language, however, employed in the same connection which clearly implies that only rational beings were within the contemplation of the legislature. As already indicated, she only can begin the prosecution, and that she is to do by making a written complaint on oath. Only" those who understand the binding force of an oath ■and are capable of giving testimony are within the spirit and intent of the act. If complaint were made by any one other than the mother the justice would certainly acquire no jurisdiction; and shall the oath -of one bereft of reason be made the basis of a warrant and an arrest ? The statute .design ates her as the prosecuting witness, and provides that her testimony shall ■be reduced to writing, read carefully to her, and by her be signed, after which it is to be transmitted to the district court with the other papers in the case as a basis for the proceeding in that court. These provisions contemplate that the complainant shall be a competent witness, and the code provides that persons who are of unsound mind are incompetent to testify. (Civil •Code, §323; Gen. Stat. 1901, §4771.)
It may seem to be a hardship that the statutory remedy does not ieach exceptional cases like this one, but it is not the only remedy available for such an injury, and even if it were, the court would not be justified in extending the remedy beyond the terms and the spirit of the statute conferring it.
The incapacity of the complainant was not discovered until the trial, and, while the judgment had been rendered, it was competent for the court to set it aside and dismiss the proceeding. It was done during the term and on the day that judgment was rendered, and, having ascertained that there was an absence of jurisdiction, it was not only the right, but the duty, of the court to set aside the judgment and discharge the defendant.
The judgment of the district court will be affirmed.
