
    Crum v. Brock.
    
    (Division A.
    Nov. 17, 1924.)
    [101 So. 704.
    No. 24421.]
    1. Bastards. Defendant, on plaintiff’s appeal, cannot complain of justice's failure tc< properly enter judgment discharging him.
    
    Tbe failure of a justice of the peace to properly enter a judgment rendered by him in a bastardy proceeding, discharging the defendant, therein, is a mere irregularity Of which the defendant cannot complain in the circuit court, when the case is being fried therein on an appeal thereto by the plaintiff.
    
      '2. Bastards. Widow is “single woman," under law authorizing bastardy proceedings.
    
    A widow is a single woman, within the. meaning oí that term as used in section 268, Code of 1906 (Hemingway’s Code, section 217), which provides that, “when any single woman shall be • delivered of a bqstard, or being pregnant with a child which, if born alive, would be a bastard,” etc., its reputed father may be forced to support it.
    3. Bastards. Defendant may prove that plaintiff in bastardy proceedings had. sexual, intercourse toith another at or about time child begotten.
    
    In a proceeding by the mother of a bastard, under section 268, Code of 1906 (Hemingway’s Code, section 217), against the reputed father of a child to compel him to support it, the defendant, in order- to cast doubt- upon the paternity of the child, may prove that its mother had sexual intercourse with another at or about the time the child was begotten.
    4. Witnesses. Fact which toitness may not be compelled to disclose is one forming necessary and essential part of crime.
    
    A fact tending to criminate, which a witness may not be compelled to disclose, is a fact that would form a necessary and essential part of a crime.
    5. Witnesses. Witness cannot decline, on his subsequent trial for perjury, to answer questions by which former testimony sought to be elicited.
    
    A witness who testified on a former trial to a fact that is no part of a crime, with the commission of which he could be charged, but who is afterwards indicted for perjury for so testifying, cannot, under the rule against self-crimination, decline, on a subsequent trial of the case, to answer questions by which the testimony given by him on the former trial is sought to be elicited.
    Appeal from circuit court of Tippali county.
    Hon. J. W. T. Falkner, Special -Judge.
    Bastardy proceeding by Mrs. Ada Brock against Hiram Crum. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    
      
      W. C. Stveat and Ely B. Mitchell, for appellant.
    The proceeding' under chapter 7 of Hemingway’s Code of Mississippi of 1917, section 217, is in the nature of a civil proceeding. Therefore, the pleading and practice governing civil suits will be followed under this chapter. Welford v. Harward, 127 Miss. 88, 89 So. 812. The rule in the United States seems to- be that under a statute providing for the institution of bastardy proceeding's- by a ‘ ‘ single ” or ‘ ‘ unmarried woman, ’ ’ a married woman even though she is living apart from her husband is not entitled to maintain such a proceeding, 17 Ala. 328; G. T. v. State, 21 Fla. 171; Sword v. Nester, 3 Dana. (By.) 453; Welch v. Claiborne, 94 Miss. 443; Gaffer v. Austin, 8 Yt. 70'; State v. Brill, Ohio N. P. 311. The word “single” means unmarried or not having been married. 36 O. J. 460.
    
      Thos. E. Peg ram, for appellee.
    The fifth assignment of error is: That the court erred in allowing the witnesses, Ike Cheetwood and Arthur Swinford to refuse to testify on the ground that their testimony might" incriminate them. The record shows that these two witnesses were under indictment on a charge of perjury, growing out of their testimony before the justice of the peace, A. B. Boten, when this bastardy case was- tried before him.
    A trial’ judge has no right under the law of the land to force a witness to testify when that witness unmistakably states that he does not want to testify on the ground that his testimony might incriminate him on a charge for which he is then under indictment. Hence, no error here.
    The second assignment of error is: The court in overruling appellant’s motion to dismiss the case for want of jurisdiction because the declaration shows on its face that the appellee was not a single woman.
    
      Appellant admits that this ground was. not assigned in support of the motion in the trial court, hut says that it is jurisdictional, and, herefore, may now be raised. -It strikes me that this is- not a jurisdictional question but a question of fact which might or might not preclude the complainant from prosecuting' her suit, but, be that as it may, the law as set forth in the chapter on bastardy settled the question against appellant. Section 217, Hemingway’s Code.
    The first assignment of error is: The court erred in overruling appellant’s motion to dismiss the case for want of jurisdiction. This is really the only contention of the appellant in this court to which there is even apparent merit. The question is: Is it essential to the prosecution of a bastardy case in the circuit court by the mother of a bastard child, where every step' of the proceeding before the justice of the peace is regular and so certified to the circuit court, that the-case or preliminary hearing-shall have been docketed by such justice? Or to put it differently: Is there to be a miscarriage of justice and the appellee’s judgment declared void, merely on the ground that the justice failed to docket the matter or enter a judgement of such docket, where there is no specific direction in the chapter on bastardy or elsewhere to the-effect that he should have done so?
    Section 2225 of Hemingway Code, is the only section of our code giving directions to a justice of the peace as to the manner of using his docket. It stipulates that he shall enter the names of the parties and the date and amount of the judgment. This .evidently embraces only civil suits in which a final judgment shall be entered. No final judgment can be entered by a justice in a bastardy case, no more than could be entered if a defendant be brought before him on a felony charge. All that is necessary for a justice of the peace to do in a bastardy proceeding, in order that the circuit court may have jurisdiction, is that he comply with the.provisions of chapter 7, Hemingway’s Code. Suoli procedure was not known to the common law. There is not a line in said chapter on bastardy, nor anything in said section 2225 that says that a bastardy proceedings shall be entered on the justice docket. Section 219, Hemingway’s Code.
    The provisions of this section are complied with almost to the letter. Except that the testimony taken before the justice was not, by agreement of counsel on both sides, reduced to writing.
    So far as I have been able to find, there is complete harmony in all of the decisions of courts of last resort, where the question has been presented, and this includes our own court, to the effect that the purpose of the preliminary hearing before a justice of the peace or police officer of a bastardy complaint is' to hold the accused man to the circuit or superior court, where the case may be tried on its merits; and that irregularities on the1 part of the justice court as to what should have or should not have been done thereat do not deprive the circuit court of jurisdiction to try the case on its merits. In other words, irregularities or discrepancies not affecting the substance of the proceedings on the merits will be disregarded. 7 C. J. 981, par. 91-8; 7 C. J. 981, (93) c; Easdale v. Reynolds, 9 N. E. 13; State v. Carroll, 101 N. W. 317; Parsons v. State, 24 S. É. 845; In Re Walker, 86 N. W. (Nebr.) 510; Altschuler v. Algaza, 21 N. W. 401; Morgan v. Stone, 93 N. W. 743; Armstrong v. Blanke,nbaker, 56 N. E. (Ind.) 681. The case of Ham v. West, 117 Miss. 340', settles the case at bar and warrants the affirmance thereof.
    
      W. C. Sweat, for appellant in reply.
    The case being a proceeding in bastardy it is governed by the chapter on bastardy, section 268 of the Code of 1906 (Section 217 of Hemingway’s Code). The next section provides as follows: (£1£ shall be the duty of the justice, in case the accused shall have been required by him to give bond, or in case he shall discharge the accused, if the woman shall have appealed, to return the proceeding to the circuit court forthwith.”
    It was clearly the intention of the legislature that the proceedings in bastardy should begin in the jhstice of the peace court. The circuit court has no original jurisdiction. The circuit court in order to acquire jurisdiction must have a judgment of the justice of the peace court, duly rendered in a proceeding brought in that court, showing what transpired in the justice of the peace court and without, that judgment and without the transcript of that record the circuit court has no jurisdiction. The record in this case shows that this matter was never docketed by the justice qf the peace; that he had rendered no judgment whatever in his court and there is no certificate from his court showing that the papers which were actually sent up were the transcript of the proceedings in his court. Therefore, the papers which were sent up by the justice of the peace in this case were of nullity. The justice court proceedings are absolutely void unless a judgment was rendered showing what was done. • Underwood Type%oriter Co. v. Taylor, 94 Miss. 584; Rayborn v. Cothern, 43 So. 70'; Donald Bros. Merc. Co v. Marsh, 48 So. 230; Ball v. Sledge, 82 Miss. 747; Gardner v. Railroad, 78 Miss. 640.
    If this court should' hold in this case that the court has jurisdiction, it will in effect mean that hereafter there will be no necessity of proceedings of the justice of the peace court. All that it will be necessary to do by a woman who shall have been delivered of a bastard child would be to file a declaration in the circuit court against the defendant. Such a ruling by this court will in effect nullify the first three sections of the chapter on bastardy.
    This court has held that jurisdiction in a bastardy proceeding is obtained by following the procedure prescribed for bringing the parties into court. Ham v. West, 117 Miss. 340. Proceedings in bastardy were unknown to thd common law but the proceeding’s are purely statutory and will therefore be strictly construed and in order for the’ circuit court to have jurisdiction, the plaintiff must follow strictly the statutes in order to get into the circuit court. 3 R. C. L. 750. This court has held that the bastardy statutes of this state are penal in their nature and must be strictly construed. 'Welch v. Gleburn, 94 Miss. 443,
    There is another matter of jurisdiction which is fatal to the case and that is the declaration on its face shows and the proof shows conclusively that the appellee in this case was a widow. She had been married but her husband was dead. The statute says: “When a single woman shall be delivered of a bastard or be pregnant with a child, which if born alive would be a bastard . . .” A widow is not a single woman in contemplation of law, and while this point was not made in the court below, the point is jurisdictional and could be raised for the first time in this court, and inasmuch as the record shows conclusively that the plaintiff in this case was a 'widow the cause should have been dismissed for want of jurisdiction and w'e say this court should dismiss the cause for want of juridiction. 36 Cyc. 460, and authorities there cited.
    Two witnesses were offered by the defendant to testify that they saw this plaintiff having intercourse with a man other than defendant about the time that she alleges that she became pregnant. These witnesses had testified to these facts in the justice of the peace court and had been indicted for perjury on account of having so testified. One of the witnesses testified that he had been promised immunity and that he would not be prosecuted if he did hot answer the questions. It is very evident from this record that refusing to testify in the circuit court the same thing they testified in the justice of the peace court would not tend «to incriminate them. The indictment had already been returned against them for their testimony in the justice court and this testimony which they were asked to give in this court could certainly not have been used against them on these indictments.
    Argued orally by W. G. Sweat, for appellant, and T. E. Peg rami, for appellee.
    
      
      Headnotes 1. Bastards, 7 C. J., sectional; 2. Bastards, 7 C. J., section 73; 3. Bastards, 7 C. X, section 118i; 4. Witnesses, 40 Cyc, p. 2540; 5. Witnesses, 401 Cyc, p. 2540.
    
   Smith, C. J.,

delivered the opinion of the court.

This is a bastardy proceeding begun in the court of a justice of the peace, as provided by sections 268 et seq., Code of 1906 (sections 217 et seq., Hemingway’s Code). On the hearing, the complaint was dismissed by the justice of the peace, and the appellee, the mother of the child, appealed therefrom, in accordance with section 269, Code of 1906 (section 218, Hemingway’s Code). The complaint filed before the justice of the peace and the declaration filed in the court below, both allege that the appellee is. a single woman, and that on the 25th day of May, 1921, she gave birth to a bastard child, now living, of which the appellant is the father.

The justice of the. peace before whom the cause was commenced filed a certified copy of the record in his court, which recites that he discharged the appellant when the cause came on to be heard before him, but the docket was introduced and disclosed no such judgment, and he himself testified that he did not enter the judgment on liis docket, but simply wrote it on a loose piece of paper. The certificate to the transcript of the proceedings before the jhstice of the peace, filed in the case, is dated January 2, 1922. When testifying as a-witness, the justice of the peace stated that he resigned in Tfecember, 1921, though he also stated that the transcript was filed by him in the court below before he resigned.

While the cause was pending in the court below, the appellant filed a motion to dismiss it on two grounds:

“(1) Because there is no transcript of record of the proceedings had before the justice of the peace before defendant is alleged to have been tried.

“ (2) Because there is no judgment of the justice of the peace in the record in this cause showing that there has ever been any proceedings in the justice court as required by law. ’ ’

The only defect in the transcript of the proceeding before the justice of the peace is that it appears to have been certified to after the resignation of [Iris office by the jhstice of the peace had become effective; but the whole evidence indicates that one of those two dates set forth therein is an error, and that, regardless of which of them is correct, the transcript was filed before the resignation became effective.

It is, true that a proceeding of this character must be begun in the court of a justice of the peace, but that court has un final jurisdiction thereof, and the failure of the justice of the peace to enter on his docket the' order made by him, discharging the defendant, assuming that such an entry should have been made, did not operate to the defendant’s prejudice in any way, and at most was a mere irregularity of which he cannot complain; 7 Corpus Juris, 981. The court below committed no er'ror in overruling the motion to dismiss.

The appellee is a widow, and was such both when the child here in question was begotten and born. The statute by which, this proceeding is authorized provides- that: “When any single woman shall be delivered of a bastard, or being pregnant -with-a child which, if born alive, would .be a bastard,” etc., its reputed father may be forced to support it and the appellant contends that a. single woman is one who has never been married, and consequently, that the court below erred in refusing to grant his request for a directed verdict in his favor.

The,words “single woman,” as used in the statute, evidently mean a woman who is not married at the time the child is born. A child begotten and born out of lawful wedlock is as much a bastard if the mother is a widow as it could possibly be had she never been married. The purpose of the statute is to provide a support for the child, both for its own good and to prevent it from becoming a charge on the public. The request for a directed verdict was therefore properly refused.

The child was born on the 25th of May, 1921. The appellee testifies that the first act of sexual intercourse with •the appellant occurred “either the last of August or the first of September, 1920,” and, to prove that the child’s father may have been a man other than himself, the appellant offered two witnesses, each of whom were asked: “Were you down at a spring near Ada Brock’s house the latter part of August, 1920, and see something occur there between Ada Brock and Sam Tatum, down at the spring?” Each of them declined to answer this question, on the ground that it would tend to criminate them. An indictment against these witnesses was then introduced, which disclosed that they were being prosecuted for having testified on the preliminary hearing of this cause before the justice of the peace that they saw Ada Brock and Sam. Tatum engage in an act of sexual intercourse. The court below sustained the objection of the witnesses to testifying, and declined to make them answer.

The evidence here sought to be introduced was, of course, competent, and, if believed by the jhry, would have cast serious doubts on the paternity of the child, and, unless within the privilege against self-crimination, the witnesses should have been compelled to answer the question.

A fact tending to criminate which a witness m.ay not be compelled to disclose is “a fact that would form a. necessary and essential part of a crime.” Chief Justice Marshauy, on the trial of Aaron Burr, quoted in 3 Wigmore, section 2260. .

It is true that, had the witnesses given a negative answer to the question, they would have thereby disclosed the fact that they had formerly testified falsely relative thereto, and therefore on that occasion had committed perjury. Nevertheless, the fact that Ada Brock and Sam Tatum did or did not indulge in an act of sexual intercourse is no part of the crime of pprjury which the witnesses may or may not have committed when testifying relative thereto. The indictment of the witnesses for perjury is not here material, for, if no such indictment were pending, a negative answer by the witnesses to the question would tend to show that they had committed perjury on the former trial,' and had thereby become subject to a criminal prosecution. The same question could arise where a witness is being cross-examined as to former statements, made either in or out of court, contradictory to the testimony about which he is being then cross-examined. No case has been brought to our attention that would support a holding that the privilege against self-crimination can be here invoked, and we áre of opinion that it cannot be. *

The court below erred in not compelling the witnesses to answer the question, for which the judgment must be reversed and the cause remanded.

Reversed and remanded.  