Murray v. Joyce

It was the purpose of the statute of 1856 in relation to witnesses, to enlarge the sources of evidence in all those eases to which it was intended to apply, by removing the legal restrictions then existing upon the rights of parties to give testimony in their own suits; and it applies to suits where but one party can be a witness. The preliminary conditions required of the complainant by the statute relating to the maintenance of bastard children, are not removed by the statute of 1856, and the respondent is made a competent witness thereby; the second section of that statute being limited in its application to such parties as were made witnesses by the first.

This was a Complaint under the Bastardy Act, and comes before the court on Exceptions to the ruling of GoodeNOW, J. The examination of the complainant was held and taken before the Municipal Court at Brunswick, on the 8th day of September, 1854. The declaration was duly filed. The complainant was introduced, and testified, among other things, that she was *on the ninth day of April, 1853, confined of a male bastard child; that said child was begotten by Laurens J. Joyce, in the month of July or August, 1852. The defendant was offered to testify, and was objected to by the complainant’s counsel, but the objection was overruled, and he was allowed to testify. Among other things, said defendant testified that he never had illicit connection with the complainant, at any time nor at any place; that he heard the statements made by her on her examination here; that his denial covered all her charges of improper intercourse between them; that he was not the father of her bastard child; that he knew he was not; that he never attempted to have any connection with her at any time or place. The verdict was for the defendant. To the rulings of the court admitting the defendant as a witness, the complainant excepted. The proceedings under the Bastardy Act remain unaffected by the act of 1856, in relation to witnesses, and this act cannot be made to apply to proceedings under the Bastardy Act. The position of the respondent, as an incompetent witness, must therefore remain the same. Under -the Bastardy Act, which still remains upon our statute books unaltered, it is necessary that the complainant should make her accusation upon oath before delivery, repeat the same during the time of her travail, and continue constant in her accusation of the same person as the father of her child; under these restrictions, and only then, she is entitled to become a witness in the trial of the cause; but if we regard the act of 1856 as applying to proceedings under this act, this could not be. The complainant would be inadmissible as a witness, until after the defendant had offered himself as such. Here, then, she is at once allowed the privilege and refused it. This is plainly a reductio ad absurdum; its fallacy is clear upon the very face; for if this position were correct, no complaint could be entered and no action could possibly be brought under the Bastardy Act; it would indeed be virtually repealed, and an injured woman could then have no remedy for her wrong, and the town no protection against its liability to support bastard paupers. But then if the act of 1856 is not designed to apply to the complainant in these proceedings, as it clearly is not, how then can it be held applicable to the respondent, and to give him alone the benefit of its provisions ? This position, we think, will be found wholly «untenable. In ordinary cases, if the defendant chooses to offer himself as a witness, then the plaintiff is also entitled to an examination ; but in this case the circumstances are from their very nature essentially different. The complainant is the only real witness, and must necessarily first come in, in order to make out a case. Here then the reason for the new law ceases, and the well known maxim, ratione cessante cessat lex, applies. The act too must be taken as one and entire, complete in itself, and it is evident that if held applicable to the respondent, it must clearly be so in regard to the complainant; but this we have shown to be absurd; it is not applicable to her, and cannot then be forced to apply to the respondent; the application must be the same in regard to both; it is unique, entire, and cannot be separated. It is clear, then, that the Bastardy Act is not, (as it was not intended to be,) affected by the act of 1856; and that proceedings under it are to be conducted as they always have been, and controlled by the same rules; if it were otherwise, the legislature would have expressed it by an additional section; but as it is, they have left it designedly untouched. Nor should the exclusion of the respondent be considered as a hardship upon him. There is no reason why he should be entitled to any more or greater privileges than he had before the passage of the new act. It must bo remembered that the oath, taken by the complainant is taken under a more than usually solemn sanction; it is taken not merely under the pains and penalties of perjury, but in view of impending, perhaps immediate, death, almost before the awful presence of her God, during the pains and dangers of childbirth. Pew, if any, women will be found so hardened, so depraved, as to perjure themselves in such an awful moment. With the respondent, however, the case is far different; if admitted, it is merely under the ordinary sanction of an oath. He is before the court charged with the crime of adultery. Is it unnatural to believe that he would rather be guilty of perjury, and have the knowledge of that guilt confined, within his own breast, than to be adjudged in open court the father of a bastard child, and become at once the object of aversion and public scorn? The disgrace attached to either position is far from enviable, and not a few would bo found who would prefer to be guilty of perjury, satisfied that he would escape any public prosecution or conviction of his guilt, than to suffer the dishonor of being adjudged an adulterer, and becoming an object of public shame. Here then the barrier interposed for the protection of injured parties is entirely broken down, the sanction of the oath virtually dissolved, and the complainant is deprived of her just remedy. The hardship of such an application of the new act ought to be sufficient to satisfy us that it cannot be held to apply to proceedings under this-process. The object of it was to promote the ends of justice, and,a forced application of it cannot be made to cases like the present, where its effect is obviously to defeat this very end. 1. A bastardy process is “ a civil suit or proceeding at law,” having all the essential incidents of other civil proceedings. The defendant’s bond runs to the complainant, and she can settle the claim as she pleases, unless the selectmen of the town interfere, by virtue of the statute provision. The pleadings are in writing — the verdict of the jury is in writing. The jury are not specially empanneled to try the case, and the personal presence of the defendant at the time of the trial is not necessary. Depositions are held admissible without any specific statute provision, and costs are allowed to the prevailing party. Eaton v. Elliot, 28 Maine R., 438, 439, and cases there cited. 2. By statutes of 1856, ch. 266, s. 1, it is enacted that no person shall be excused or excluded from being a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the suit as party or otherwise, except as thereinafter provided. 3. Section 2d of the same chapter nowhere prohibits the defendant from offering himself as a witness, in a case where the cause of action implies an offence against the criminal law, on the part of the defendant, but on the contrary expressly recognizes his right so to do. And the true intent of that section is to prevent his being required by the opposite party, under section 1, to criminate himself, and the right construction of the 2d section does not exclude the testimony of those who are made witnesses by virtue of some other statute or any well settled principle of the common law, the design of the statute being to enlarge and not to restrict the sources of evidence. By way of illustration, in case of the theft of a casket, the contents of which are known only to the owner, and the theft being proved by other witnesses, would not the owner now be admissible to prove the contents of the casket ex necessitate, as in the case of Herman v. DrinJewater, 1 Maine R., 29 ? The error is in supposing that the parties to suits are admissible now only by virtue of this statute. We contend that the rights of those parties who were previously admissible remain unaltered, and the door is opened wider for the admission of others. Jackson v. Collins, 3 Corwin R., 89; Wilkinson v. Leland, 2 Peters R., 662; Holbrook v. Holbrook, 1 Pick. R., 248; Henry v. Tilson, 17 Yerm. R., 479; Crocker v. Crane, 21 Wend. R., 211; Morris v. Delaware and Schuylkill Canal, 4 Watts & Soargent R., 461. 4. A case of this description is the very one, of all the different classes of cases, to test the wisdom of the principle upon winch the statute is founded. The facts are peculiarly within the knowledge of the parties. The necessity for such a statute is not apparent in suits where all the transactions pass under the eye of persons not immediately interested. The theory of the statute is, that truth can be best extracted from the testimony of those who must necessarily know all there is to bo known about the case. Where can a bettor opportunity be found to test its correctness than in a case like this ? Winslow v. Kimball, 25 Maine R., 495; Allen v. Parish, 3 Ham, 198, given in the U. S. Digest, vol. 3, p. 484, s. 64; Soh. Harriet, 1 Story, 257; Beals v. Hale, 4 Howard R., 37; Brown v. Wright, 1 G-reenl. R., 240; Scolt v. Searles, 1 Smedes & Marshall R., 590. 5. In subsequent sections of the statute, ss. 3 and 6, the legislature have carefully specified certain cases to which they did not intend the statute should apply, and the inference is strong, taken in connection with the comprehensive language used in s. 1, that they contemplated its application in all cases not expressly excluded.