{ "id": 1513894, "name": "Wimberly v. State", "name_abbreviation": "Wimberly v. State", "decision_date": "1909-05-24", "docket_number": "", "first_page": "514", "last_page": "518", "citations": [ { "type": "official", "cite": "90 Ark. 514" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "67 Ark. 493", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152556 ], "weight": 2, "pin_cites": [ { "page": "524" } ], "opinion_index": -1, "case_paths": [ "/ark/67/0493-01" ] }, { "cite": "9 Neb. 125", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4395461 ], "opinion_index": -1, "case_paths": [ "/neb/9/0125-01" ] }, { "cite": "58 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "58 Ark. 377", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": -1 }, { "cite": "61 Ark. 407", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902324 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/61/0407-01" ] }, { "cite": "81 Minn. 501", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8890567 ], "opinion_index": -1, "case_paths": [ "/minn/81/0501-01" ] }, { "cite": "17 N. E. 909", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "115 Ind. 421", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1327420 ], "opinion_index": -1, "case_paths": [ "/ind/115/0421-01" ] }, { "cite": "58 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "20 Ark. 216", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869318 ], "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ark/20/0216-01" ] }, { "cite": "58 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329143 ], "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ark/58/0353-01" ] }, { "cite": "7 Neb. 50", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5379635 ], "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/neb/7/0050-01" ] }, { "cite": "14 Gray, 486", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2091635 ], "opinion_index": 0, "case_paths": [ "/mass/80/0486-01" ] }, { "cite": "53 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911642 ], "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ark/53/0140-01" ] }, { "cite": "55 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322227 ], "opinion_index": 0, "case_paths": [ "/ark/55/0387-01" ] }, { "cite": "45 Ark. 56", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892011 ], "opinion_index": 0, "case_paths": [ "/ark/45/0056-01" ] } ], "analysis": { "cardinality": 490, "char_count": 8373, "ocr_confidence": 0.638, "pagerank": { "raw": 3.9804678670938176e-07, "percentile": 0.9050131880275646 }, "sha256": "87f80fafe12d0b3a4a90bc7854bb8d5213d7510b8bbeb135cf231405930fc06f", "simhash": "1:8c90debab2b64e8e", "word_count": 1504 }, "last_updated": "2023-07-14T18:13:08.486087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wimberly v. State." ], "opinions": [ { "text": "Battle, J.\nOn the 17th day of July, 1907, Lena D. McBride filed with the clerk of the Montgomery County Court an affidavit, accusing Willis M. Wimberly of being the father of a bastard child delivered by her on the 19th of June, 1907, and asking for judgment against him for fifteen dollars for lying-in expenses and for the monthly sum of three dollars for seven years for the support of the child. The judge of the county court thereupon issued a warrant, in the name of the State of Arkansas, to any sheriff or constable of this State, commanding him to arrest and carry the accused before the county judge to answer such charge. He was arrested, and tried by the county court, at a regular term thereof, and acquitted and discharged. An appeal to the circuit court was asked and granted, Lena D. McBride making and filing an affidavit that the appeal taken by her was not taken for the purpose of delay, but that justice might be done; and filing bond.\nIn the circuit court the defendant moved to dismiss the appeal because it was taken by Lena D. McBride, and she was not a party to the action, and the State had no right to appeal. The motion was overruled; and the defendant was tried and found guilty of bastardy, and judgment was rendered against him.\nIn the course of the trial it was shown that one Mann testified in the trial before the county court, which was on the 26th of July, 1907, and after that trial went to the State of Oklahoma, and about a week before the trial in the circuit court, which was on the 6th of October, 1908, a witness received a letter from him saying he was in Oklahoma. Upon this showing a witness, Nelson, who heard his testimony, was allowed, over the objection of the defendant, to testify what the testimony of Mann was in the trial before the county court. The defendant has appealed to this court.\nThe proceeding in this case was in the name of the State. It is a civil proceeding. Chambers v. State, 45 Ark. 56; Pearce v. State, 55 Ark. 387. An appeal can be taken by the party aggrieved from the judgment of the county court to the circuit court. Kirby\u2019s Digest, \u00a7 489. But appellant says that the prosecuting witness could not take the appeal. Let that be as it may, the appeal was taken. The State, through its prosecuting attorney, ratified the appeal and -adopted it as its own. It has been held that a party may adopt a suit brought in his name without his consent. Hardware Co. v. Deere, Mansur & Co., 53 Ark. 140, 144, and Craig v. Twomey, 14 Gray, 486, cited therein. We see no reason why an appeal cannot be adopted in the same manner.\nBut the appellant contends that, \u201cif the State had the right of appeal, some one one with authority to bind the State, or to represent it, \u25a0 should have made -the affidavit.\u201d This is not true. The defendant is required to make the affidavit in such cases, when he appeals, but the State is not. Section 7777, of Kirby\u2019s Digest, provides: \u201cThe State shall not be required or ruled to give security for costs in any case,\u201d and section 7778 provides: \u201cIt shall not be requisite for the State or any officer thereof to swear to any petition, bill, answer or proceeding in 'chancery or to any application, pleading or proceeding at law, and such bills, petitions, answers, applications, pleadings or proceedings shall have the like effect as if the same were duly verified by affidavit, as in case of private persons.\u201d The filing of an affidavit is a proceeding. Wilson v. Macklin, 7 Neb. 50, 52. The. effect of the last section is to relieve the State of the necessity of making an affidavit in any civil proceeding.\nAccording to Vaughan v. State, 58 Ark. 353, 371, the foundation laid for the admission of the testimony of Nelson as to the testimony of an absent witness was sufficient.\nIn Clinton v. Estes, 20 Ark. 216, 234, Chief Justice English in delivering the opinion of -the court said: \u201cBeing a non-resident of this State, the better opinion seems to be, upon principle, that proof of what he swore on a former trial was admissible, though -the decisions on this point are in conflict. (Here cases cited.)\n\u201cThe learned annotators on Phillips\u2019 Evidence, after reviewing the decisions on this point, say that those which favor the admission of proof of what a non-resident witness testified on a former trial, etc., come nearest to the liberal principle on which secondary evidence is generally received, are less anomalous, and therefore more scientific than the narrower decisions.\n\u201cMr. Greenleaf, after stating in the text that if the witness be out of the jurisdiction proof of what he swore upon a former trial is admissible, says in a note (vol. 1, \u00a7 163, note' 2) if he is merely out of the jurisdiction, but the place' is known, and his testimony can be taken under a commission, it is a proper case for the judge to decide, in his discretion, and upon all the circumstances, whether the purposes of justice will be best served by issuing such commission, or by admitting the proof of what he formerly testified.\n\u201cPutting the case before us on this ground, the decision of the court below must be regarded as conclusive upon the point, there being no showing of any gross abuse of such discretion. Bishop v. Tucker, 4 Rich. L. R. 178.\u201d See 2 Wigmore on Evidence, \u00a7 1404.\nWe find no reversible error in the admission of the evidence.\nJudgment affirmed.", "type": "majority", "author": "Battle, J." } ], "attorneys": [ "7. 7. Alley, for appellant.", "C. A. Cunningham, Assistant Attorney General, for appellee; June P. Wooten, of counsel." ], "corrections": "", "head_matter": "Wimberly v. State.\nOpinion delivered May 24, 1909.\n1. Bastards \u2014 nature oe bastardy proceeding. \u2014 Although a bastardy-proceeding is brought in the name of the State, it is of a civil nature. (Page 31b.)\n2. Appeal \u2014 ratification.\u2014An appeal taken by the prosecuting witness in- a bastardy proceeding may be ratified and adopted by the State. (Page 516.)\n3. Same \u2014 necessity of affidavit by state. \u2014 An appeal may be taken by the State from a judgment of the county court in a bastardy proceeding without filing an affidavit; Kirby\u2019s Digest, \u00a7 7778, relieving the State of the necessity of making an affidavit in any civil proceeding. (Page 517.)\n4. Evidence \u2014 former testimony of absent witness \u2014 foundation.\u2014\u2022 Proof that a witness received a letter from an absent witness in the case about a week before the trial, stating that the writer was in another State, is a sufficient foundation for the admission of the former testimony of such absent witness. (Page 517.)\n5. Bame \u2014 discretion to admit eormer testimony oe absent witness.\u2014 Proof of what a witness swore upon a former trial is admissible on a subsequent trial of the same cause if it be shown that he is a nonresident and out of the court\u2019s jurisdiction; but if his place of residence be known, and his testimony can be taken under a commission, it is within the court\u2019s discretion to issue a commission to take his testimony or to admit proof of his former testimony, and the exercise of such discretion is not reviewable save for gross abuse. (Page SI7-)\nAppeal from Montgomery Circuit Court; James S. Steel, Judge;\naffirmed.\n7. 7. Alley, for appellant.\n1. The evidence of Mann was not admissible. Bastardy is a civil action, and his deposition could have been taken. Kirby\u2019s Dig. \u00a7 3157. His previous testimony .could have been used, if the accused was then present. 58 Ark. 370. The same rules of evidence apply as in other civil cases. 2 Enc. of Ev. p. 242; 115 Ind. 421; 17 N. E. 909; 81 Minn. 501. Before secondary evidence can be used, the superior or primary must be out of reach without fault. 2 Enc. Ev. p. 308.\n2. The appeal should have been dismissed after defendant had been acquitted in the county court. Kirby\u2019s Dig. \u00a7 \u00a7 489, 1487; 61 Ark. 407; 84 Id. 199. The mother has no interest in the 'result. Kirby\u2019s Dig. \u00a7 493.\nC. A. Cunningham, Assistant Attorney General, for appellee; June P. Wooten, of counsel.\n1. Proper foundation was laid to introduce Mann\u2019s testimony. 58 Ark. 377; 33 Id. 539; 1 Greenl. on Ev. \u00a7 163. Kirby\u2019s Dig., \u00a7 3157, does not impose the duty on the State to have depositions taken. It states \u201cdepositions may be used.\u201d The admission was within the sound discretion of the court \u2014 no abuse is shown. 58 Ark. 372.\n2. It was not necessary to give the words of Mann, if the substance was given. 58 Ark. 377; 1 Greenl. Ev. \u00a7 165.\n3. The mother, the real party in interest, could appeal and give bond, etc. Kirby\u2019s Dig. \u00a7 \u00a7 489, 4666, 1485; 61 Ark. 407; 3 Enc. PI. & Pr. 277; 9 Neb. 125; 67 Ark. 493; 60 Id. 524; 33 Id. 745." }, "file_name": "0514-01", "first_page_order": 538, "last_page_order": 542 }