Town of Norfolk v. Gaylord

Where a witness voluntarily testifies in chief on a particular subject, he maybe cross-examined on the subject, even though his answers may criminate or disgrace him. In a bastardy suit brought by a town, the mother of the child testified, in behalf of the plaintiffs, to sundry acts of illicit intercourse between the defendant and herself, at certain places named, in October and November, 1S55. The child was born on the first day of August, 1856. The defendant then offered himself as a witness, and testified that he had no criminal intercourse with the mother after the first of August, 1855, and that the intercourse to which the mother had testified took place before that date. Held, that the defendant could be required to submit to a cross-examination as to acts of intercourse at the places named, both for the purpose of contradicting him, and for the purpose of showing that the acts of intercourse took place at the times testified to by the mother. Held also that, as to acts of illicit intercourse admitted by the defendant, but claimed to have taken place before the first of August, the jury might properly consider them in connection with the question of the paternity of the child, as showing a habit of criminal intercourse with the mother on the part of the defendant, and facilities for such intercourse, and that it was not the duty of the court, upon the request of the defendant, to exclude such facts from their consideration.

Bastardy suit. On the trial to the jury the plaintiff introduced the testimony of Olive J. Dowd, the mother , of the child, who testified that the child was born on tb : first day of August, 1856, and that the defendant was t' father; that he had criminal connection with her on the 23rd day of October, 1855 and on the 1st and 29th days of November following, in different places specified by her. The defendant thereupon offered himself as a witness, and testified that he had no illicit intercourse with the said Olive between the 1st of August and the 30th of December, 1855. The plaintiffs’ counsel, in their cross-examination, asked the witness if he did not have illicit intercourse with the said Olive in one of the places named by her; to which question the defendant’s counsel objected,- on the ground that the transaction inquired about occurred prior to the first of August, 1855, and the defendant himself appealed to the court as to his.oblig^ion to answer the question. The plaintiffs’ counsel claimed the right to make the inquiry as part of their cross-examination, in order to show, from such examination and from other evidence, that the transaction concerning which they inquired, did not in fact occur before the first of August, but, as the said Olive had testified, on the 23rd day of October, 1855, or in the month of November. The court overruled the objection to the testimony, and thereupon the defendant was cross-examined at length in relation to illicit intercourse in the places named by the said Olive, as to all of which the defendant testified that they took place prior to the first of August. At the time of the trial all criminal proceedings against the defendant for the acts alleged had become barred by the statute of limitations. The counsel for the defendant requested the court to instruct the jury that they ought to lay out of consideration whatever proof might have been derived from the testimony of the defendant, of his intercourse with the said Olive prior to the first of August, 1855. Upon this point the court charged the jury that the only question for their consideration was, whether the defendant had or had not been proved to be the father of the illegitimate child ; that if he was not the father, and did not have illicit intercoursejwith the said Olive at or about the time she had stated in her testimony, he could not, on this complaint, be punished for other acts of criminal intercourse with her; but that, in deciding the qr hether the defendant was the father, they had a right to look at all the testimony which had been given on the trial; and that the court would not, as a matter of law, exclude from their consideration the defendant’s acts of illicit intercourse, although sworn by him to have occurred prior to the first of August; and that, as to such instances of intercourse concerning which the jurors were satisfied that they in fact took place before the first of August, it was for the jury to say, and they might properly consider, whether such acts, either alone, or in connection with other evidence in the case, aided in the proof of the principal matter in dispute. The jury having returned a verdict for the plaintiffs, the defendant moved for a new trial. The defendant should not have been subjected to a cross-examination with regard to acts of criminal intercourse which took place before the first of August, 1855. These acts could of course have had no relation to the paternity of the child, which was born more than a year afterwards. The fact that he had himself admitted them in his testimony furnished no ground for allowing a cross-examination with regard to them. Nor did that fact preclude him from the right to refuse to answer a question, where the answer would tend to disgrace him or to convict him of a crime. There is no presumption, that because the defendant had been guilty of a criminal act prior to the first of August, he was guilty of a like criminal act in October or November. It is never allowed, upon a prosecution for a crime, to show that the accused has been guilty of a former like crime. In allowing the jury to take into consideration, in connection with the question of the paternity of the child, the criminal acts of the defendant which they should be satisfied occurred before the first of August, the court committed an error, both because those acts could not have any possible connection with the birth of the child, and were therefore wholly foreign to the real inquiry, and because the attention of the jury was drawn from the real inquiry, whether the defendant was the father of the child, to the question of his guilt generally in having criminal intercourse with the mother of the child. 1 Swift Dig., 46. The cross-examination of the defendant, on points tending to criminate him, was properly allowed. He offered himself as a witness and thus waived his privilege if he had any. He' had already admitted illicit intercourse with the mother of the child, and the cross-examination was only as to the time. The crime was barred by the statute of limitations, and the answer of the defendant tended only to subject him to pecuniary damages, not to a criminal prosecution. 1 Greenl. Ev., § 452. The acts in question formed a part of the issue to be tried. Id., § 454. The matter inquired about was the same precisely as to which the defendant had testified, and was relevant to the issue. The inquiry was further proper for the'purpose of discrediting the defendant, and sustaining the testimony of the mother, whose testimony had been contradicted by him. And it was proper that the jury should be allowed to consider, in connection with all the other evidence, the acts of criminal intercourse admitted by the defendant, even though they should be regarded as having taken place before the first of August, as there would be a natural presumption that such intercourse continued, especially as the woman was living under the same roof with the defendant. 2 Greenl. Ev., §§ 42, 43. The court was not bound to exclude this evidence from the jury, nor to instruct them as to the legal effect of the evidence. Brown v. Keach, 24 Conn., 73, 77.