Bacon v. Harrington

22 Mass. 63

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1827
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. The question upon this record is, whether the judge of the Municipal Court erred in rejecting the testimony of the complainant, on the ground that she was not put upon the discovery of the father of the child during her travail. And it is argued that he did err, because there was proof, by the testimony of the physician who assisted her in her peril, that the time of travail, in the opinion of physicians, continues after the birth of the child, and that he put her upon the discovery and received her declaration within that period.

If the judge had been called upon to decide what is the true time of travail, either in a popular or a technical sense, the testimony given should have been held conclusive, it not being opposed by any other testimony. But he was to ascertain the meaning of the legislature, in the use of that phrase, from the statute itself; and looking to that, there can be no doubt he decided correctly. The woman, in order to be a competent witness at the trial, is required, being put upon the discovery of the truth respecting the accusation in the time of her travail, to accuse the person of being the father of the child of which she is about to be delivered. This sufficiently shows that the legislature considered her travail, for the purpose of such examination, to cease with the biith of the child. And considering that in the prosecution the mother has a deep pecuniary interest, and that there is hule chance of escaping the effect of her testimony if admitted as competent, we can perceive good reason for the legislature to require it should be compensated cy a solemn declaration at that perilous crisis, when, if ever, the mind will be most fearful of uttering a falsehood.¹

Judgment affirmed.

1 See Revised Stat. c. 49, § 3; Maxwell v. Hardy, 8 Pick. 560; Tillson v. Bowley, 8 Greenl. 163; Dennett v. Keeland, 6 Greenl. 460; Judson v. Blanchard, 4 Connect. R. 557; R. R. v. J. M., 3 N. Hamp. R. 135.

In Connecticut,-in a suit by the town for the support of a bastard child, the mother, though a competent witness and in court, need not be produced Chaplin v. Hartshorne, 6 Connect. R. 41.