
    Ellen Scott vs. John Donovan. Same vs. Same.
    Norfolk.
    January 26, 1891.
    February 27, 1891.
    Present: Field, C. J., C. Allen, Holmes, Morton, & Lathrop, JJ.
    
      Bastardy Complaint — Accusation by Complainant—“Travail" — Exhibition of Child to Jury.
    
    The accusation by a woman of a man as the father of her bastard child, made at any time after the pains of her labor have begun and before the delivery of the child, is an “ accusation in time of travail,” within the Pub. Sts. c. 85, § 16.
    At the trial of a complaint under the bastardy act, Pub. Sts. c. 85, the child may be exhibited to the jury without regard to its age.
    
      Two COMPLAINTS under the bastardy act, Pub. Sts. c. 85.
    The cases were tried in the Superior Court, before Barker, J., at the May sitting, 1890. It appeared in evidence that the complainant was delivered of a bastard child on November 1, 1888, and of another on March 3, 1890; and that the respondent was the father of both children. There was also evidence, in one case, that the complainant at the time of her first confinement accused the respondent of being the father of the child, during the small pains which occurred in the earlier part of her travail.
    The respondent asked the judge to rule that the term “travail” meant the time during which the child was being delivered, and not the time during which the mother suffers pain preceding the commencement of delivery. The judge refused so to rule, and instructed the jury that an accusation made at anytime after the pains of labor had commenced, and before the delivery of the child, could be considered by them, irrespective of the question whether the pains were occasioned by the dilatation of the parts preparatory to the progress of the child from the womb, or its actual progress.
    The complainant was also permitted, against the objection of the respondent, to exhibit the children respectively to the jury, at each trial, for their examination.
    The jury in each case returned a verdict of guilty, and the respondent alleged exceptions.
    
      E. C. Bumpus, for the respondent.
    
      E. A. Phelps, for the plaintiff.
   Holmes, J.

The instruction to the jury as to the period covered by the time of the complainant’s travail was a correct interpretation of the Pub. Sts. c. 85, § 16. The language of the section has not been construed very strictly. Tacey v. Noyes, 143 Mass. 449. See Long v. Dow, 17 N. H. 470; Rodimon v. Reding, 18 N. H. 431.

It has been decided in this Commonwealth that the child may be exhibited to the jury. We see no sufficient reason for reconsidering the decision, or for taking a distinction according to age. The youth of the child goes rather to the weight of the evidence. Finnegan v. Dugan, 14 Allen, 197. Gaunt v. State, 21 Vroom, 490, 493.

Exceptions overruled.  