
    In the Matter of the Application of Henry A. Carleton for a writ of Habeas Corpus.
    Bastardy: evidence. In a prosecution for bastardy-by a woman claiming to be unmarried by reason of her husband having a wife living at the time of her marriage to him, held, that hearsay evidence as to such prior marriage of her husband having been admitted without objection, tended to prove that she was unmarried and would be sufficient when the offense charged was clearly proved, to prevent the court from discharging the accused on a writ of habeas corpus.
    
    Original application for a writ of habeas corpus.
    
    
      Bush Bicharás, for petitioner.
   Maxwell, Oh. J.

The petitioner being accused by one Elenora Seilling of the offense of bastardy was arrested, examined, and required to enter into a recognizance in the sum of $500.00 for his appearance at the next term of the district court of Gage county to answer the charge. Having failed to enter into a recognizance as required he was committed to the jail of said county. He now applies for a writ of habeas corpus to release him from imprisonment upon the sole ground that it does not appear from the testimony that the prosecuting witness is an unmarried woman. It appears from the testimony of the prosecuting witness taken on the examination of the plaintiff, that she was married to one Henry Seilling seven years ago; that they lived together as husband and wife for four years; that about three years ago she was informed by Seilling’s mother and other members of the family that he had a wife then living to whom he had been married prior to his marriage to the witness, and that Seilling informed her that such was the case at the time he abandoned her three years ago; that she had not obtained a divorce from him, and had not lived with him since she was informed that he had a wife then living. The position of the attorneys for the petitioner, as we understand it, is that there is no testimony to prove that the prosecuting witness is an unmarried woman. To this we cannot assent. None of the testimony of the prior marriage of Seilling was objected to, and most of it was drawn out by the counsel for petitioner, and, while it tended to prove the facts alleged, was sufficient to justify the justice in requiring the petitioner to enter into a recognizance for his appearance before the district court. The proof clearly shows that the plaintiff is guilty of the offense charged, and should not be discharged unless there is a failure of proof on a material point. The writ must be denied.

Writ denied.  