Kelly v. State

Parke, J., delivered the opinion of the Court. This is an appeal taken in a bastardy proceedings in which the traverser reserved thirty-seven exceptions, and in which the State has made a motion to- dismiss the appeal on the ground that -there was no final judgment on the conviction. 1. The appellant first interposed a motion to quash the indictment, and then a plea to the jurisdiction, which were held to be insufficient. Both the motion and the plea rested on the common point that the trial 'court was without jurisdiction because the indictment was found against the traverser without the mother of the bastard having first accused the appellant in writing under oath of being the father before a justice of the peace having criminal jurisdiction.

The rulings on the motion and on the demurrer are set forth in the first two bills of exceptions, although no bill of exception should have been given to the ruling on the demurrer. The mother of the bastard died a few days after the birth of the child, and before she had made any information against the traverser. After her death, her mother appeared before a justice of the. peace with criminal jurisdiction, and accused the appellant in writing under oath of being the father of her daughter’s living bastard child. A warrant was issued for the traverser’s arrest and he was brought before the justice of the peace a-nd the testimony of the mother making the complaint was taken down and reduced to writing, there being no cross examination; and then signed and sworn to by the prosecuting witness.

The accused thereupon made a motion to quash the warrant and proceedings because there was no writing under oath by the mother of the bastard child accusing the appellant, but the motion was denied by the magistrate, who held the appellant for the action of the grand jury, which later indicted him for, the bastardy charged. ⁹¹ With this preliminary statement we shall proceed to the discussion of the narrow but important question raised for our decision. Before the passage of the Act of 1912, ch. 163, now codified in article 12 of the Code, the justice of the peace was the court of original jttrisdiction in all prosecutions for bastardy, and the circuit court or the Criminal Court of Baltimore City had no other jurisdiction over the crime except as an appellate tribunal. Cushwa v. State, 20 Md. 281 ; State v. Chaney, 93 Md. 71, 73 ; O’Brien v. State, 126 Md. 270, 276 . Since the passage of the Act of 1912, the justice of the peace has no jurisdiction to hear and determine a charge of bastardy against the putative father, but conducts simply a preliminary examination for the purpose of holding the accused for court if the evidence justifies it.

O’Brien v. State, 126 Md. 270, 276 ; Hamilton v. State, 127 Md. 312, 314 . It may well be that the justice of the peace has no jurisdiction to issue a writ for the arrest of the alleged father until the woman who has been delivered of or who is pregnant with a bastard child shall in writing under oath before him accuse the party charged of being the father. Supra. While this may be conceded ex gratia argumenti, it does not follow that the court is without jurisdiction if this accusation be not made before the justice by the woman and in the manner prescribed by the statute.

Section 2 of article 12 of Code. This Court has held in O’Brien v. State, 126 Md. 270 , that the loss in transmission by mail of the original papers (i. e., the warrant, bond, testimony and cross-examination), taken by the justice of the peace in a bastardy proceedings begun by the mother did not oust the jurisdiction of the circuit court, which should have received and kept them in custody. Sections 4, 5, 7 of article 12. And, on principle, there does not appear to be any sound reason for the contention that the mere non-compliance with what this Court has accurately characterized as “simply a preliminary examination for the purpose’ of holding the accused for court, if the evidence justifies it,” would deprive the court of its jurisdiction to indict.

It is quite true that in O’Brien v. ⁹² State, supra, this Court indulged in the dictum that, “it is not necessary to determine whether an indictment could be validly found without some proceeding being first taken before a justice of the peace. It is sufficient now to say that that would be an unwise and dangerous course to pursue in view of this statute.” At page 281. However, as was pointed out in the course of the same opinion: “Ho possible use of any of the papers required by the present statute to be sent to the court can be made at a trial under the indictment, unless it be the examination and cross-examination of the woman. At page 211.

And, again, “We are of the opinion that it was not intended by the Legislature to make the prosecution dependent upon the papers being received by the court. There is m more reason why that should be so than the failure of a justice to transmit the bond or recognizance and other papers taken at some other preliminary examination, for as there is no longer a judgment by the justice and the proceeding in court is not in the nature of a review of his action and the papers are manifestly required to be transmitted for the protection of the State, county and prosecutrix, and not for that of the accused, no valid reason can be assigned for holding that the Act of 1912 was intended by the Legislature to be of such a mandatory character as to result in depriving the court of jurisdiction, if the papers were either lost, or executed in such a careless and defective way as justices too frequently do. Especially is this so when the object of the Act of 1912 was undoubtedly to get rid of technical difficulties which had often arisen under former statutes.” At page 219. These quotations indicate that the ratio decidendi of the decision supports the view that the jurisdiction of the trial court is not to be determined by a narrow construction of the statute, but upon a beneficial reading of its provisions so as to obtain the object of the enactment.

To hold the provision relied upon by the appellant is not mandatory but directory does not offend the letter or the spirit of the enactment, but secures the prosecution of those committing the crime of bastardy under all circumstances of ⁹³ guilt, which, must liare been the legislative intent. A different construction would make the premature death of the mother, or her physical or mental incapacity to take the oath before a justice of the peace, the way of escape for the ■offendin'. The primary intent and purpose of the Act of 1912 was to confer original jurisdiction upon the circuit courts and the Criminal Court of Baltimore City in the prosecution of the father in all bastardy cases, and that jurisdiction was to be enforced and administered in these courts by the same proceedings as are had in other criminal cases. The proceedings before the magistrate begun by the accusing mother were a preliminary procedural method of bringing the crime to the attention of the court and of securing the mother’s evidence against the accused, if she should die before the time of the .trial.

But this method of bringing the alleged crime before the court for prosecution was not exclusive, and all the other methods of submitting the crime ■charged to the grand jury for indictment remained available. The position of the learned jndge below on the motion to quash and on the demurrer to the plea was in accord with these views; and the appellant’s first two assignments of error must fail. 2. The next thirty-four exceptions are to the rulings on the evidence and for convenience they have been separated into groups. I. Annie Bader, the mother, testified that she discovered in July, 1924, that her daughter, Eleauore Bader, was pregnant with the child which was born on February 25th, 1925.

Her daughter died seven days after the birth of the child. When she learned of her daughter’s condition, the mother took her to the home of the traverser’s parents and there they saw the accused and his mother and father. The witness was permitted to say that her purpose in making this visit was to find out if her daughter had told her the truth in respect to the paternity of the expected child, and this ruling is the ground of the third exception, and we can see no possible objection to this statement of so natural and obvious a pur ⁹⁴ pose. In this interview, when the five parties named were in the room together, and when the traverser was first charged by the mother with the paternity of her daughter’s child, and where, according' to the mother’s testimony, the accused admitted his guilt, the whole answer of the witness, which contained the admission of the traverser, and- some natural comment of the father on his son’s statement, and his declaration' that he and his wife were willing to do anything in their power, was asked to be stricken out, and the court’s action in refusing is presented by the fourth bill of exception.

The answer was responsive, and whatever of the conversation that was objectionable was not separated by the motion from the admission, and we find no reversible error. The testimony objected to in the fifth, sixth, seventh and twenty-eighth bills . of exceptions was elsewhere given in evidence, without objection, by the witness testifying at the time of each ruling and, therefore, these rulings are not reversible error. IL The questions asked the witness, Miss Hilberg, under the fifteenth to seventeenth hills of exceptions, were not permissible on cross-examination, as they did not relate to anything testified to by the witness in chief. The effort to introduce a warrant charging Watson Kelly with the non-support of the infant child, as set out in the twenty-third exception, was a collateral matter, and the trial court was right in rejecting it.

The questions asked the witnesses under the twenty-fourth, twenty-fifth and twenty-sixth exceptions were on cross-examination, and no injury resulted from their answers, even if the questions had been objectionable, nothing prejudicial to the traverser was introduced or excluded by the rulings on the twenty-seventh, twenty-ninth, thirty-first, thirty-second, thirty-third, thirty-fourth and thirty-sixth exceptions, and the evidence offered on the thirtieth was to contradict a material statement of the accused and was admissible in rebuttal.

III

While the traverser was testifying, he stated that he and his mother and Miss Bader went into the kitchen, and he was then asked by his mother, in the presence of Miss Bader, if he were the father of the child, and he replied that ⁹⁵ he was not. And counsel for the traverser then asked what the young girl had said, and stated the inquiry was for the purpose of impeaching the testimony of Mrs. Bader that her daughter had informed her the traverser was guilty of the offence, but we do not find any testimony by Mrs. Bader relating what her daughter had told her, and as there was no indication of what the nature of the proposed testimony of the witness would he, this court canuot say the exclusion of the answer in the twentieth, twenty-first and twenty-second ■exceptions was reversible error, especially in view of the fact that later on iho mother narrated at length what she asserted was said by the girl.

IV

Mrs. Bader swore that the night after her daughter’s ■death the traverser and his father were at her home, and the traverser’s father told the mother in the son’s presence that he was willing to do all in his power to help them; and “that it could not have hurt him any worse if it was his own daughter that was dead.” Miss Hilberg’s testimony was that in the presence of his parents the traverser admitted to her his criminal intimacy with the girl extending into May, 1924, and that the traverser and his parents rejected the suggestion of marriage, hut the parents agreed, in the presence of the son, to pay a dollar a week for the support of the child through the Henry Watson Children’s Aid Society. The father of the dead girl, also, testified that the traverser and his father came to the girl’s home and there the father of the accused said, in his son’s presence, that he thought his son was too young to marry, hut that he was willing to do anything in his power to help in the trouble, and that be would never see the witness lose as long as the child lived, and that he would pay the costs of getting a doctor. The admission of this testimony is the basis for the twelfth, thirteenth, fourteenth, eighteenth and nineteenth exceptions. V. The eighth, ninth, tenth and eleventh exceptions wore taken to the testimony of Mrs. Bader that two days after the baby was born the father and mother of the traverser brought the baby a cradle and some clothes; and that