Citations
- 16 Fla. 554
Full opinion text
■Mb. Justice Van Valkenbuegh
delivered, the opinion of ¡the court.
This was an action under the statutes relating to bastardy, -■commenced by affidavit and complaint of Julia against John ^before a justice of the peace, and was tried at the Orange -county Circuit Court in 7th Judicial District before a jury .•at the May term, 1877.
Upon calling the jury to try the case, one I. W. B. was .put upon his voir dire and held to be a legal juror, but a witness was. then introduced by the plaintiff to show his Sncompetency, and was “ thereupon excused by the court by virtue of the power claimed to be invested in the court in its discretion to relieve the said juror from embarrassment, while the court admitted that the juror might be a legal juror in the case.” To this ruling the defendant’s counsel excepted.
Evidence was then introduced upon the part both of complainant and defendant, and the jury found that John, this appellant, was the real father of the child of which Julia had then been delivered.
Pending the trial, the counsel for the defendant asked the court to charge the jury—
First. That the burden of proof is on the plaintiff.
Second. The fact that the defendant is the father of the child must be established by á fair preponderance of evidence.
Third. If the weight of the evidence is not with the plaintiff, the verdict must be for the defendant.
Fourth. That it is the duty of the jury under their oaths to give to the whole testimony their most serious consideration, but it is their right to reject all such portions of it as they may believe to be untrue. It is their peculiar province to judge of the credibility of witnesses.
Fifth. In a prosecution for bastardy, the mother of an illegitimate child has an interest in the result, which, if she is called as a witness, may be considered by the jury in weighing her testimpny.
The judge refused to so charge the jury and the defendant’s counsel excepted.
The court then charged the jury as follows:
“ This is a case brought under the statute by Julia against John. The plaintiff charges the defendant with, being the father of an illegitimate child, which she gave birth to. The law permits a single woman pregnant or delivered of a child, who by law would be deemed and held a bastard, to take certain steps prescribed by law to establish the paternity of said child. The law gives full jurisdiction-■to this court, through the intervention of a jury, to try the .issue, whether the reputed father is the real father of the .child or not. The law requires the complainant to he a single woman—this is a matter of proof. The statute of bastardy is that it must be the child of a single woman, unmarried at the time of conception, and being and remaining unmarried., not only at the time of parturition, but when the ease is tried before a court of competent jurisdiction to establish the fact of the bastardy of her child. In the progress of that examination, which brings you to decide what is your opinion in the truth in relation to the issue in this case, whether the defendant under his plea of ‘ not guilty ’ is guilty or not, you are in this, as in all other cases, the judges of the testimony, yet technically the plea of not guilty car..ries with it no weight, unless the party supports it by evidence before the jury, either in person or by testimony of -others.
“ To which said opinion and charge of the court the said defendant, by his attorney, did then and there except.”
“Appeals to your sympathy are alike foreign to your strict legal duty as jurors to find according to the testimony. A large mass of scientific testimony has been offered for your consideration. It is not within the functions of the .court to analyze this testimony, but you are to judge of the .application and force, by your own comprehension, of its practical and legal effect.”
“To which said opinion and charge of the court the said defendant, by his said attorney, did then and there except.”
“ The other part of the testimony, from the complaint to -plea of not guilty, each sworn to by the respective parties, with the accompanying testimony, you must weigh in ac•■cordanee with its intrinsic merit as well as its application in ¡•this case with the attendant circumstances, to which said .opinion, and charge of the court, the said defendant by his .attorney did then and there except.”
The defendant moved for a new trial, which motion was-denied by the court, and judgment was ordered under the-statute against the defendant.
The judgment entered by the court (after the formal recitals) read as follows:
“ It is ordered, adjudged and decreed that the State of Florida do recover of and from the said John five hundred dollars for the use and benefit of the said Emma, to be paid in or by instalments of fifty dollars annually, or yearly, to-the guardian of the said Emma to be hereafter appointed by the County Judge of Orange county, to be used for and towards the support and maintainanee and education of said child Emma.
“And it is further ordered, adjudged and decreed that the said Julia do have and recover of and from the said John ten dollars for the necessary incidental expenses attending the-birth of said child, paid and expended by the said Julia.
“ It is further ordered, adjudged and decreed that the said John make, execute and deliver to the Clerk of the Circuit Court a good and sufficient bond, with good and sufficient sureties, in the name of and to the State of Florida, condi tioned to be paid to and for the use and benefit of said Emma ; and that he will pay or cause to be paid to said guardian fifty dollai-s per annum for and during the space of ten years.
“ It is further ordered, adjudged and decreed that the said John pay all the cost of this suit, taxed at twenty-three dollars and twenty cents; and that said guardian aforesaid have execution for the amount due on said bond against said John and his sureties at any time he may fail to pay said instalments as above adjudged against him, and the defendant in mercy,”