7 S.D. 639 | S.D. | 1895
This was a prosecution brought in the name of the state, on the relation of Amy Mabel Weed, against the defendant, under the bastardy act of 1893. The jury found the issues for the state, and the defendant brings the case here for review on writ of error.
The first question presented is the constitutionality of the law. It is contended by counsel for plaintiff in error that the law conferring jurisdiction upon county courts in this class of cases is unconstitutional. This question was presented and determined by this court at the present term, in the case of State v. Scott, 65 N. W. 31. That case was fully considered and discussed, and the court arrived at the conclusion that the bastardy act of 1893 was constitutional, and it is not necessary to again review this question. Ruled by that case, this point must be decided against the contention of the plaintiff in error.
It is next contended that, -if we hold the law is so far criminal in its nature that county courts have jurisdiction, the law is ¡an ex post facto law and therefore not valid as against this defendr ant, as the birth of the child occurred less than nine months after the passage of the act of 1893. But the act of 1893 creates no new liability on the part of the defendant. His liability existed under .Sections 5560-55.68, inclusive, c. 37 (Civil Procedure) Comp. Laws.
Counsel for the plaintiff in error further contends that the court erred in sustaining the objections of the counsel for the state to certain questions propounded to the complaining witness on cross-examination. The principal question objected to and excluded is as follows: “Now, when you left here to go to Madison, South Dakota, Mr. Allrenshaw bought you, and gave you, your ticket?” This was objected to as incompetent and immater
It is next contended that the objection of the defendant to a question propounded to the witness Allrenshaw by the state’s attorney .should have been sustained. The witness, on his direct examination, had testified that he had improper relations with the complaining witness at about the time the defendant had, as testified to by the plaintiff’s witness, improper relations with her. He was then asked: “Did you ever deny to anybody that you ever had intercourse with her?” This question was objected to by counsel for plaintiff in error as incompetent, irrelevant and immaterial, and for the reason that the question does not call the witness’ attention to time, place, etc. The question evidently was not asked with the view of laying the foundation for impeaching the witness, but for the purpose of ascertaining from him if he had at any time or place denied the existence of the fact which he had by his evidence claimed did exist. We discover no valid legal objection to this question. The witness answered that he had denied it to strangers and people about town who had asked him
It is further contended that tbe court erred in not calling upon tlie defendant to plead to tbe charge. The act is silent upon this question of pleas, and while, no doubt, it would be better practice to require tbe defendant to plead to the complaint or charge, yet a failure to do so does not constitute reversible error. Tbe defendant bad all tbe advantages at tbe trial that be could have had if a regular plea bad been entered. State v. Reddington (S.D.) 64 N. W. 170.
Tbe last point we shall notice is that in tbe court’s charge to the jury it charged as follows: “Tbe burden of proof in this case is upon tbe plaintiff, and in order to recover, it is necessary that tbe state have a preponderence of evidence to sustain tbe charge made. If it has established tbe charge made to your satisfaction by a preponderance of evidence, then your verdict should be for the plaintiff; if it has not, your verdict should be for the defendant. By a preponderance of evidence is meant that it should be more of a convincing character to the judgment of tbe jury on that side rather than on the other.” It is contended by counsel for tbe defendant that in this class of cases the jury must be satisfied beyond a reasonable doubt that tbe defendant is the father of the child. This seems to be the view taken by the supreme court of Wisconsin (Yan Tassel v. State, 59 Wis. 851,18 N. W. 328); but this is the only state that seems to have adopted tbe rule applicable to criminal cases only. The great weight of authority, however, holds the doctrine laid down by tbe county court in its instruction. Altschuler v. Algaza (Neb.) 21 N. W. 401; Lewis v.
We have carefully examined the other instructions of the court, and, finding no error therein, the judgment of the county court is affirmed.
By Chapter 64, Laws 1893, which took effect on the first Monday of January, 1895, the county courts of this state, in counties containing a population of less than 20,000, were deprived of all jurisdiction, except in matters of probate, guardianship, and settlement of the estates of deceased persons. And Section 4, c. 127, Laws of 1895, this court is required to remand all actions then pending in the supreme court, on appeal from or writ of error to any county court which was thus deprived of jurisdiction, to the circuit court of the county in which such county court was held. This court takes judicial notice of the jurisdiction of inferior courts, organized pursuant to the general laws of the state, within its jurisdiction. Nelson v. Ladd, 4 S. D. 1, 54 N. W. 809. It will therefore take judicial notice that Brown county has a population of less than 20,000, and the county court, therefore, has been deprived of its jurisdiction in this class of cases. This action will therefore be remanded to the circuit court of Brown county for further proceeding in accordance with law.