
    Miller v. Busick.
    
      Trial of bastardy suit — Cotirtof common pleas — Evidence taken before justice of peace not subscribed to by complainant — Not error to admit such evidence if defendant enter trial without objection.
    
    Y\Uiere, at the trial of a bastardy suit in the court of common pleas, the examination of the complainant taken before the justice of the peace is offered in evidence in conformity with section 5625, Revised Statutes, and the record shows full compliance by the justice with all the requirements imposed upon . him by the chapter regarding bastardy, save that the examination was not subscribed by the complainant, and the defendant has appeared in the common pleas in obedience to his recognizance, and, without objection, entered his plea and entered upon the trial to the jury, it is noterror to admit such examination in evidence over the objection of defendant,
    (Decided June 1, 1897.)
    Error to the Circuit Court of Licking county.
    The proceeding below was in bastardy, commenced by the defendant in error against the plaintiff in error, ' by the making of complaint in due form before a justice of the peace. The defendant having been ^brought in by a warrant, the complainant was examined under oath by the justice, and cross-examined by counsel for defendant, which examination was reduced to writing by the magistrate and certified by him and filed, but not subscribed by the complainant. At the trial in the common pleas, the examination before the justice was offered in evidence by complainant and admitted and read to the jury, against the objection and exception of the defendant. A verdict for plaintiff followed, and' judgment thereon, which was affirmed by the circuit court.
    
      Kibler <& Kibler and Fulton & Fulton, for plaintiff in error.
    Section 5625, provides that when the accused pleads not guilty of the charge, before the court to which he is recognized to appear, or having been recognized, fails to appear, the court shall order the issue to be tried by a jury; and at the trial of such issue the examination before the justice shall be given in evidence by the complainant.
    The plaintiff in error claims that the examination of the complainant before the justice is a jurisdictional matter, and without such examination the court would have no jurisdiction to try the plaintiff in error.
    The statute requires the complainant to be examined under oath in the presence of the accused and that such examination shall be reduced to writing in the presence of the justice and be subscribed by the complainant. We claim that these four things are equally obligatory, and that no one of them, can be omitted without affecting the jurisdiction of the higher court.
    . The statute now in force differs from the statute in force when the case of Hoff v. Fisher, 26 Ohio St., 7, was decided. Then the statute only' required that “the examination before the justice shall be given evidence.” Whereas the statute now in force says: “The examination shall be given in evidence by the complainant.” 16 Ohio St,. 56.
    . S. M. Hunter, for defendant in error.
    The complaint was duly made, sworn to and subscribed before the justice by the complainant. On that complaint a warrant was issued, and Miller arrested and brought before the justice. In his presence the complainant was examined by the justice, and her examination written down in the presence of the accused. Some half a dozen questions were asked her by the justice, and then the defendant proceeded to examine her at great length, asking her over a hundred questions which were answered as the transcript shows. The defendant entered into a recognizance for his appearance at the common pleas court and made no objection whatever to her not signing the examination. The defendant had every benefit from her examination that he could have had if she had formally signed it.
    The accused has waived his right to object. The examination is provided by statute for his benefit. He may waive the examination or any part of it or any formality connected with it.
    ' Bastardy is not a criminal action in any sense in Ohio. The verdict of guilty or not guilty cuts no figure. That was the verdict in the old action of trespass.
    
      The defendant could be tried in his absence, even if he was not under recognizance. So far as the trial and proceedings are concerned all are conducted as a civil action. A verdict for the accused maybe set aside as well as a verdict against him, and a new trial granted, and it would not be putting him twice in jeopardy. A preponderance of evidence is sufficient. Carter v. Frise, 9 Ohio St., 402. The proceeding in bastardy then being in its essential features a civil action, the strictness of criminal proceedings is not required. The defendant may waive any of the requirements of the statStateY. Johnson, 56 N. W. Rep., 404; Williams v. Copeland, 5 Allen, 209; 20 N. W., 383; Striclder v. Grass, 48 N. W., 804; State v. Smith, 9 S. E., 433; Hoff v. Fisher, 26 Ohio St., 7.
    Proceedings of justices were construed with great liberality. Mo Garvey . v. Pucket, 27 Ohio St., 669; Austin v. Ilaydeyi, 6 Ohio, 388; Ilumiston v. Anderson, 15 Ohio, 557; Lewis v. Laylin, 46 Ohio St., 663; Scovern v. State, 6 Ohio St., 288.
   By the Court.

The proposition of plaintiff in error is, that there could be no jurisdiction in the common pleas without a preliminary examination in accordance with the statute ; that there was no such examination shown by the record because the paper was not subscribed by the complainant as required by the statute; that its introduction was, for that reason, error, and the common pleas, was without jurisdiction to hear the complaint-.

We think the admission of the examination was’ not error, and that the common pleas had jurisdiction. It is true that the statute, section 5615, provides that the examination shall be subscribed by the complainant. But the simple neglect to observe this requirement is not such an omission as to render the proceeding void. The record shows a legal complaint, legally presented; the presence of the proper parties; that the complainant was, under oath, examined by the magistrate, and, at great length, cross-examined by counsel for defendant; that the examination thus made was certified by the justice, and was filed by him; that the defendant, upon being required by the justice, entered into recognizance to appear in the common pleas ; that he there appeared, entered his plea, and the trial was commenced without objection. The proceeding is not a criminal one to punish the defendant, but is a civil one for the purpose of affording a remedy to enforce the discharge of a civil and moral duty. The requirement of section 5625, that ‘ ‘the examination before the justice shall be given in evidence by the complainant,” is for the benefit of the defendant. It affords him an opportunity to compare the testimony of the complainant given at the trial with her statements under oath, at the inception of the proceeding-. It is a requirement which the defendant might waive.

And, where all other indicia of indentification specified in the statute are present, and no real doubt exists of the genuineness of the examination, it would be tlie extreme of technicality to hold the mere absence of the complainant’s signature to be a fatal defect. Under the authority of Hoff v. Fisher, 26 Ohio St., 7, and especially considering that proceedings before justices are to be treated with libera] ity, and that, as to matters within the scope of their authority, technical precision is not to be required, the provision of section 5615, that the examination shall be subscribed be the complainant, may well be held to be directory merely. ■

Judgment affirmed.  