Robbins v. Smith

Park, C. J.

On the trial of this cause in the court below the court permitted the complainant to prove that, on several occasions previous to the birth of her child, she made known to her mother the fact of her pregnancy, and stated to her that the defendant was the father of her unborn child.

The court further permitted the complainant to prove that she was put to the discovery in the time of her travail, and that she then also accused the defendant of being the father of her child.

The defendant complains of the rulings of the court in these respects, and places his objections upon two grounds. The first is, that inasmuch as the complaint does not allege that she was put to the discovery in the time of. her travail, and that she then accused the defendant of being the father of her child, and that she afterwards remained constant in her accusation, the testimony in question could not properly be received. In the recent case of Booth v. Hart, 43 Conn., 480 , this court held, that in an action by the mother on the statute of bastardy for the maintenance of an illegitimate child against the putative father, it was not necessary, since the statute of 1848, permitting parties to suits to testify, that the mother should be put to the discovery in the time of her travail, to enable her to maintain her suit by preponderance of evidence, as in other civil actions; but that if the mother . should seek the aid of the statute to make out the primd facie case which it provides for, it would be necessary; in other ■words, that such primd facie case could not be established 'without such proof, however strong otherwise might be the ■ evidence in support of the complainant’s cause. It docs not appear in this case that the complainant sought the aid of the statute in this respect. It was therefore not necessary that ■ she should make such proof, and of course not necessary that she should allege the fact in her complaint.

But this does not render inadmissible the evidence of constancy in her accusation, and of her having been put to the discovery in the time of her travail. These facts are proper to be proved in all cases under the statute, and were so here .-as corroborative of the testimony of the complainant. They *187 are not parts of tlie complainant’s case as charged, but mere evidence, and therefore need not bo alleged.

The court in Massachusetts has taken a similar view of this question. The statute of that state on the subject of bastardy is similar to ours; but since parties to suits have been made competent witnesses, the necessity of requiring the mother, in the time of. her travail, to accuse the putative father, no longer exists. In the recent case of Hawes v. Gustin, 2 Allen, 402 , the court say: “In the particular of requiring the mother to accuse the putative father in the time of her travail, the necessity of proof of such fact no longer exists. It is competent evidence, and may be used as corroborating the testimony of the mother.” The court in New Hampshire, on a statute similar to ours, has held the same doctrine. 8 N. Hamp., 185.

The remaining objection of the defendant to the reception of the evidence is wholly of a technical character. It is claimed that the declarations of the complainant to her mother made previously to the birth of her child, and to the bringing of her suit, cannot bo regarded as evidence of constancy in her accusation, for at that time no legal accusation had been made, and she had not been put to the discovery in the time of her travail.

If this caso liad been tried previously to the passage of the statute of 1848 allowing parties to suits to be competent witnesses in their own behalf, or did it appear in this case that the complainant on the trial sought to make out the statutory primá facie case, there would have been more question as to the admissibility of the evidence; for then the fact of constancy would have been a material element in her case. But even then the objection would have been merely technical. All that could have been said of it would be, that the complainant liad been even more constant in her accusation than the statute required.

But such is not the case we are considering. As we have said, it does not appear that the complainant sought the aid of the statute to make out her case on the trial. If she had done so the motion ought to have shown the fact. It is the *188 defendant’s motion, and all facts necessary to raise the questions of law which he makes should appear in it, or they will bo taken against him. It must therefore be considered, that the complainant sought to make out her case by preponderance of evidence, and the evidence of constancy and discovery were brought into the case merely as corroborative of her testimony on the trial. A part of the evidence was unquestionably proper for the purpose. The remainder was of the same general character, but the claim is that it does not have the sanction of the statute. It appears that soon after the complainant discovered her pregnancy she made known the fact, and declared that the defendant was the father of the child, and she persisted in this statement down to the time when she was put to the discovery in her travail, when she also made the same statement, and continued afterwards to make similar declarations. Here was one continuous series of declarations that the defendant was the father of her child;—one continuous course of conduct, during a longer period than the statute required when constancy was a material element in the case itself. Shall a new trial be advised because the statute in its terms and under a strict construction covers but a part of this series of declarations ? Previously to the passage of the act of 1848 there was reason for a strict construction of the statute under which bastardy suits were brought, and a rigid adherence to its requirements; but since the passage of that act, leaving a suit to be sustained by preponderance of evidence, a more liberal construction of the statute should prevail, and the word “ accusation,” as used in the statute, should be considered as having its ordinary meaning, of a declaration by the mother that a certain person is the father of her child, and not a charge made in legal form by means of a complaint to a magistrate. Indeed it is only as the statute uses the words “ continue constant in her accusation” that any ground is furnished for the idea that such constancy of accusation must follow the institution of a legal complaint. Her continued accusation must necessarily be in itself an informal one, and there is nothing in the statute to suggest the idea that it must follow the birth of the child *189 or the discovery to which she is put in the time of her travail. It is a forced construction of the statute that puts any limitation as to time upon it. The important fact is the consistency of her declarations from first to last as to the paternity of her child.

Our view of the whole matter in a summary way is this: The statute expressly authorizes the complainant in a bastardy suit to prove on the trial that she was constant in her accusation and was put to the discovery of the paternity of the. child at the time of her travail. This constancy of accusation and being put to the discovery in her travail are not an essential part of her case and need not be averred, where, as here, she malees out her case by a preponderance of evidence, but may be proved in corroboration of her own testimony; she not losing the right to avail herself of this statutory evidence even though not availing herself of the right given by the statute to stand upon a special prirná facie case. And as we regard the evidence of her constancy of accusation as admissible under the statute, and as the statute does not in terms limit that evidence to constancy after the birth of the child, we hold that a constancy of accusation before the birth of the child is also admissible in evidence, not only as falling within the reason of the statute, but as adding in fact to the force of the evidence of her later constancy in the same accusation.

A new trial is not advised.

In this opinion the other judges concurred; except Carpenter, J., who dissented as to the admissibility of the declarations of the complainant to her mother before the birth of the child.