
    Clarence C. Vail, d. b., vs. The State, p. b.
    
      Appeal in Bastardy—Practice—Evidence.
    
    1. In an appeal in bastardy, the defendant is entitled to six peremptory challenges.
    2. In such appeal, a mere preponderance of testimony is not sufficient, but in order to find that the party charged is the father of the child, the jury must be satisfied of that fact, from the evidence, beyond a reasonable doubt.
    
      (September 29, 1897.)
    
    Tore, C. J., and Grubb and Pennewill J. J., sitting.
    
      W. J. Willis and Attorney-General R. C. White for the State.
    
      T. Bayard Heisel and Walter H. Hayes for the defendant.
    Court of General Sessions, New Castle County,
    September Term, 1897.
    Appeal in bastardy; the issue for the jury being, whether Clarence C. Vail was or was not the father of the infant child of Anna M. Wolf.
    At the trial, while empanelling the jury, Mr. White inquired whether the defence would be allowed to exercise six challenges, • as in criminal cases, or only three as in civil cases.
   Pennewill, J:—

This is a quasi-criminal proceeding, triable in the Court of General Sessions, and we think it has been dealt with by our courts as a criminal proceeding. We will therefore allow the defendant six challenges.

At the conclusion of the testimony on both sides, Mr. Willis asked the court to instruct the jury that they should find their verdict according to the preponderance of the testimony, and that it was not necessary for the State to establish its case beyond a reasonable doubt.

66 Ill. (Freeman), 162; 45 Ill. 37; 57 Maine, 495.

Mr. Hayes contended that it was a criminal proceeding, so recognized in the unreported (Delaware) case of the State vs. Springer.

Also in Baker vs. The State, 47 Wis. 111.

He therefore asked the Court to charge that if the jury had a reasonable doubt, growing out of all the testimony, that Clarence C. Vail is the father of the said child, their verdict should be not guilty.

PpNNpwiUL, J.,

charged the jury as follows:

Gentlemen of the jury: This is an appeal in bastardy taken to this Court by Clarence C. Vail, and it comes to you as an issue by an order of this Court. The sole question you are to try is, whether Clarence C. Vail is or is not the father of the child of Anna M. Wolf.

The counsel for the State have asked us to charge you that in order to find that Clarence C. Vail is the father of this child, it is not necessary that you should be satisfied of that fact, from the testimony, beyond a reasonable doubt, but that it is sufficient if the preponderance of the testimony establishes it.

We will say to you that in criminal cases the law requires that the jury should be satisfied beyond a reasonable doubt of the guilt of the accused before they can find a verdict against him, but in civil cases a different rule prevails, and a preponderance of testimony is sufficient.

The Legislature of this State has made this issue triable only in this Court—a court of criminal jurisdiction- -and it is difficult therefore to see why it should not be governed by the same principles as obtain in the trial of other criminal cases. And besides, such a proceeding as this has been declared by this Court, in several cases, to be a criminal action, and governed by the rules of criminal trials.

In the case of James L. Smith vs. The State, 1 Houston, (Criminal Cases), 108, which was an appeal in bastardy like the case at bar, the Court said:

‘ ‘ This is a quasi-criminal proceeding and solely cognizable in this, a court of criminal jurisdiction, in which the State is the party complainant, and not a civil suit between the individuals concerned in it, and for which reason the father was a competent witness for the State. ’ ’ He was competent because, although a quasi-criminal proceeding, it was triable in a criminal court.

This Court having heretofore taken such a position, we are not disposed to hold a different one, or one which would be inconsistent therewith, and we shall adhere to the principle established in that case until it is overruled.

We say to you, therefore, that if in this case you are satisfied, from the testimony, beyond a reasonable doubt, that Clarence C. Vail is the father of this child, your verdict should be that he is the father. If, on the other hand, you are not satisfied beyond a reasonable doubt, after a careful consideration of all the testimony, that he is the father, you should find that he is not the father of the child.

With these instructions, we leave the case in your hands.

Verdict: “We find him to be the father of the child.”  