Reed v. Haskins

116 Mass. 198, 1874 Mass. LEXIS 61

• Court: Massachusetts Supreme Judicial Court
• Decided: October 28, 1874
• Status: Published

Opinion

Devens, J.

The mode in which this proceeding is initiated is by the prosecution before the court or magistrate who takes the accusation and examination of the complainant, upon which a warrant is issued against the party charged thereby as the father of the child. Upon the return of the warrant, after due hearing, the court or magistrate, before whom the same is returnable, may require the accused to give bond with sufficient surety or sureties to appear at the next term of the Superior .Court, and the action is entered by filing therein a copy of the accusation, warrant and proceedings before such court or magistrate, and the Superior Court then has jurisdiction thereof. Chapel v. White, 3 Cush. 537. These copies were filed in the present case, and the supplementary and more formal complaint, upon which, although not required by any direct provision of the statute, it has been usual to try the case, was not filed until the second term. To this, however, the defendant cannot properly object, as the time of its filing was a matter for the discretion of the court, the case being properly before it. The formal complaint is simply a mode of stating facts and framing an issue with a view to a convenient and orderly trial of the matter in controversy. Chapel v. White, supra. At the first term the woman may not have been delivered of her child; if so, no formal complaint could be made which would embrace all the essential facts necessary to sustain a prosecution against a party as the father of a bastard child, and no judgment of affiliation could be passed. In Rice v. Chapin, 10 Met. 5, where a process of this character had been tried upon the accusation as made before the magistrate without filing any more formal complaint in the Court of Common Pleas, and it was on this account remanded to that court for further proceedings, it was said that it would be competent for that court to grant leave to the complainant to file a proper complaint, and that the cause night then proceed to trial, and this, although several terms must have passed since the entry of the action.

Nor can the defendant object that the complainant was permitted to testify that being put upon the discovery of the truth of her accusation, in the time of her travail, she then accused the defendant of being the father of her child. Such evidence was competent as tending to corroborate her testimony at the trial; Gen. Sts. c. 72, § 8 ; and although it might be more valuable and satisfactory if coming from the lips of another person, yet she was a witness for all purposes, and might properly testify upon this subject. Murphy v. Spence, 9 Gray, 399. In Hawes v. Gustin, 2 Allen, 402, evidence similar to this had been received and afterwards withdrawn by the judge from the consideration of the jury. The only point there decided was that, even assuming that an error had been committed, it was competent for the court to withdraw the evidence, having cautioned the jury not to regard it as in the case. Whether the evidence might properly have been received, it was not necessary then to consider.

Exceptions overruled.