State v. Hussey

"Wright, C. J.-

-The demurrer was properly overruled. It is true that the indictment does not aver, in so many words, that the said Nancy Kerr is a female. Nor is this necessary, if, upon an examination of all the language employed, the sex of the person defiled is sufficiently shown. The indictment does sufficiently and clearly show this. And while it would be better, in such cases, to charge expressly the sex, yet the omission of such averment will not vitiate, if the same thing appears from all that is stated by the pleader.

The objection that the prosecution • was barred by the statute of limitations, could not be made by demurrer. If, after the offense was committed, there was any period during which the party charged, was not usually and probably a resident within the state, such period is not to be taken as a part of the limitation. Code, section 2814. Such non-residence need not, however, be stated in the indictment. If the defendant relies upon the bar of the statute, he should plead the same, to which the state might reply the non-residence, and thus raise the issue.

For this reason, then, without stating others, we think the demurrer was properly overruled. And this conclusion renders it unnecessary to determine, whether the cause comes under section 2813 or 2814 of the Code.

The state offered a witness, who testified that the prosecutrix was confined and delivered of a child ; that witness was present; and that, during her travail, the said Nancy *411 made statements as to who was the father of the child, and in relation to the circumstances of the sexual intercourse when the child was begotten, referring to the act, or time,, charged in the indictment. The testimony of the witness as to what the prosecutrix then said, was objected to, but the objection was overruled, and the statements admitted. We are aware of no rule which will justify the admission of this testimony. The bill of exceptions recites, “that the declarations of the mother, while in extremo travail, might be received to prove who was the putative father of the child.” Such a rule, to our minds, finds no sanction, either in reason or from authority. And especially so, when, as in this case, the prosecutrix was present and testified as a witness on the trial against defendant.

It is further objected, that the court erred in giving and refusing certain instructions. No objection was made at the proper time to these instructions, however, and under the repeated rulings of this court, we cannot now consider their correctnesss.

Judgment reversed, and trial de novo awarded.