Sheay v. State

Millek, J., delivered the opinion of the Court. Sheay was indicted in the Circuit Court for Alleghany County for bastardy. The indictment, which was found on the Pith of October, 1890, is in the usual form, and charges that the ti'averser did, on the 8th of February, 1889, at the county aforesaid, beget on the body of Ida Barnard, a free white woman of that county, a female illegitimate child, of which child the said Ida was after-wards on the 8th of November, 1889, at the county aforesaid, delivered; and that said child was then and there horn alive, and is still living, to wit, at Alleghany County aforesaid. To this indictment he pleaded, 1st, not guilty, and 2nd, that the illegitimate child in the indictment named was not born or delivered in Alleghany County, as charged, but was born in the City of Pittsburgh, in the State of Pennsylvania, where its mother was then actually residing, and where she has' ever since-resided, and. still resides.

To this second plea the State interposed a demurrer, which was sustained. The case was then tried before the Court without a jury. The traverser was found guilty, and the usual judgment entered against him, that he enter into recognizance in the sum of $80, to indemnify the county from all charges that may arise, for the maintenance of the child, or stand committed to the custody of the sheriff for the period of twelve months. Does this second plea set up a valid defence to the indictment?

This is the sole question in the case, and it is presented both by a wrif of error and by an appeal on an exception taken to a ruling of the Court at the trial. There is no dispute as to the facts. The traverser is the father of the child. The begetting of the child occurred in Alleghany County in February, 1889, where the mother then resided, living out as a servant girl, and where she continued to reside until the following October, when she went to her home in Pittsburgh, and ⁵⁵ has continued to reside there ever since.

The child was horn in Pittsburgh on the 8th of November, 1889. In July, 1890, the mother brought the child to Alleghany County for the purpose of swearing it upon the traverser, bxit not to reside there. At this visit she remained in the county about two weeks, and swore out the warrant upon which the traverser was arrested and brought before a magistrate. He denied the paternity, and entered into recognizance to appear at the following October Term of the Circuit Court for that county.

She then returned with her child to her home in Pittsburgh, and continued to reside there until the sitting in October, 1890, of the October Term of that Court, when she came with her •child to Alleghany County for the purpose of testifying before the grand jury, but not to reside there. She did so testify, and remained in the county to attend the trial 'of the case, and testified at the trial. As soon as the trial was concluded, she intended to return to Pittsburgh,' and to continue her residence there. Upon these facts the Court made the ruling complained of against the traverser, and found him guilty.

The proceedings in cases of this character are regulated by statute, and are not substantially different, under the present law, from those prescribed by the old Act of l^Sl, ch. 13, entitled “An Act directing proceedings against persons guilty of formication.” If the putative father, when brought before the magistrate, denies the paternity of the child, and is aggrieved by the judgment of the magistrate requiring him to give security to indemnify the county from all charges that may arise for its maintenance, the case goes, upon his recognizance to appear, to the Court, where such proceedings are to be had thereon, by indictment “as in other criminal cases.” If upon trial he is found guilty then the Court •adjudges him to give such security, or to be committed to the custody of the sheriff for not less than six ⁵⁶ nor more than twelve months. Code, Art. 12, sec. 5. The proceeding is treated hy the law as a criminal proceeding,