E. N. E. v. State ex rel. Lulu E. , 25 Fla. 268 ( 1889 )

Maxwell, J.:

In a proceeding under the statute relating to bastardy the jury gave a verdict against appellant on the issues made, and he was condemned by the judgment of the court to pay fifty dollars annually for ten years for the support of the child. He asks this court to reverse the judgment because of errors committed during the trial, on which he founded a motion for a new trial, that was denied. The chief of these alleged errors are that it was wrong to charge the jury that they must find their verdict on the preponderance of the evidence, and that the defendant was not entitled to the benefit of a reasonable doubt as in criminal cases, and wrong not to permit a witness for the defendant to testify what the prosecutrix said in a conversation he had with her in the early part of 1886 about her condition.

We think the court did not err in giving the charges in respect to preponderance of evidence and reasonable doubt. While the decisions of this court in construing the bastardy statute have characterized the proceeding it authorizes as quasi criminal, it is only because the preliminary steps before a magistrate to get the accused bound over to the Circuit Court for trial makes it so. When the case reaches that court it loses its criminal aspect, and is henceforth a civil action between the prosecutrix and the defendant, insomuch that the judgment and costs are given for or against one or the other according to success or failure on the issues tried between them. In W. H. T. vs. State ex rel. M. C., 18 Fla., 883, reference is made to the ease of John D. C. vs. Julia V. H., 16 Fla., 554, where it was first held that the action is quasi criminal. Objection was made in the former case that the defendant had not been arraigned, and the court explained in the latter case that when it had spoken of the action as quasi criminal it meant that “ it bore a resemblance in its inception to criminal proceeding. It was so far criminal in its nature as to cause the arrest by process of the defendant, and if, upon examination, sufficient cause appeared, that such defendant should give a bond with good security for his appearance before the next Circuit Court for the county; that such court had then complete jurisdiction, and (should) cause an issue to be made up and tried by a jury; that then the trial is had in the same manner and after the same form as provided for trials of other civil causes in that court. The affidavit ot the complainant, taken by the Justice ot the Peace, is filed in the Circuit Court and becomes the complaint which defendant must answer. It is not necessary to arraign the defendant, but he answer’s the complaint, and from thence the proceedings are of a character and are conducted in the manner of a civil action. Prosecutions under this statute partake partly of a criminal and partly of a civil character. It was not designed to punish the accused for a crime, but to make him contribute to the support ot the child. In getting into the Circuit Court with the case it partakes of the criminal in form, when there it is a civil action.”

In the Circuit Court, then, it must be tried as a civil action, and the consideration aud effect of evidence must be governed by the rules applicable to such actions. Of those rules one is that the jury must look to the preponderance of evidence in finding a verdict, and not give any benefit of a reasonable doubt to either side. Hence the court was correct in the charge complained of. See Mann vs. People, 35 Ill., 467; McCoy vs. State, 71 Ill., 111. There are cases holding otherwise, some of them cited by counsel for appellant, but these are on statutes under which the courts held the proceeding in the trial as well as in the preliminary stage of the case to be quasi criminal. Where it is held to be a civil action in the higher court, as it has been here, the rule is as we have stared it.

But we think the court erred in not permitting the wit-mess to testify to a conversation between him and the prosecutrix in regard to her condition. The time of the conversation, according to the dates giveu, was not long after the date she had specified as that on which defendant had impregnated her; and while we are not informed of the object for which the question was put, it was presumably to draw out previous statements made by her inconsistent with the charge against defendant. The question in the absence of the usual predicate, if intended to impeach her testimony, would not have been proper. But for the very reason that the action being tried was a civil action, in which the rules of evidence governing criminal cases were not applicable, and in which she was a party, thereby in a position to render her declarations in respect to the matters in issue legal evidence, the question should have been allowed. If she had not been a witness her declarations could have been brought out, and it would be a hardship upon defendant^ and unjust to him, to deprive him of evidence otherwise available, merely because she was a witness. This view is sustained by Welch vs. Clark, 50 Ver. 386, and McCoy vs. State, supra.

Another ground of the motion for a uew trial was that the court erred in its charge to the jury as to the period of gestation of a healthy woman for a healthy child.

There was no evidence on that subject and it is not a matter of law, wherefore we think it was error to give such a charge.

The ease must be remanded for a new trial, hence we refrain from comment as to its merits on the evidence.