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State v. M.

Decided: July 18, 1967.

THE STATE OF NEW JERSEY (F), PLAINTIFF-RESPONDENT,
v.
M., DEFENDANT-APPELLANT



Lewis, Labrecque and Conford. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Plaintiff F commenced this action against M by filing a complaint with the Borough of Princeton Municipal Court alleging that defendant was the father of her child C, born out of wedlock on May 21, 1963. Plaintiff sought to compel defendant to provide support for the child pursuant to N.J.S.A. 9:16-1 et seq.

On January 29, 1965 defendant was adjudged to be the father of C and the magistrate imposed support payments of $15 per week. Defendant appealed to the Mercer County Court where, after a trial de novo before a jury, he was found by a verdict of 10 of the 12 impaneled jurors, to be the putative father and ordered to pay $15 per week support. He now appeals to this court contending: (1) the verdict was against the weight of the evidence; (2) the charge was inadequate, confusing and misleading; (3) the court erred in charging the jury that it might reach a verdict if only five-sixths

of its number (ten jurors) agreed, and (4) his deposit to secure a bond should be returned.

Subsequent to the filing of the complaint defendant had been required to post bail of $1,500 pending the municipal court trial; after the judgment of paternity the bail deposit was continued as cash security for a bond to assure compliance with the support order. Eventually $500 was released by the municipal magistrate, but both the latter and the County Court judge refused to return the balance of the money. Defendant now urges that even if the judgment against him be affirmed the bond should, nonetheless, be revoked because there is no authority under N.J.S.A. 9:16-1 et seq. for its exaction.

I

Our study of the record leads to the conclusion that there is sufficient evidence to support the jury verdict. Plaintiff testified in depth as to her relationship with defendant. She related a continuing course of sexual intimacy, culminating in the act of intercourse alleged to have resulted in the child's conception. Although defendant admitted to being in plaintiff's company on the crucial date, August 25, 1962, he stated that their relationship was strictly platonic. One Henry R. Kalmus gave evidence for plaintiff; he corroborated her testimony to the extent that on the day in question the conduct of the parties at Manasquan was more than platonic.

The law of this jurisdiction is well settled that in a bastardy proceeding

"* * * the burden of proof does not require proof of paternity beyond a reasonable doubt, but merely by a fair preponderance of the evidence. Overseer of Poor of Town of Montclair v. Eason, 92 N.J.L. 199, 201-202, 1 A.L.R. 631 (E. & A. 1918). Neither is it necessary to a finding against the putative father that the testimony of the mother be corroborated. * * * [ Ibid. ]." I. v. D., 60 N.J. Super. 211, 217 (App. Div. 1960).

In this light, we are not able to say that the jury's verdict was against the weight of the evidence.

II

We have examined the charge which defendant claims was inadequate, confusing and misleading. We find that the court's instructions were short and clear, and that they were fair, reasonably comprehensive ...


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