Opinion
February 14, 1966
Appeal from an order of filiation. On the trial, the respondent in the proceeding was called by petitioner as his first witness and, over proper objection, was compelled to testify, contrary to the provisions of section 531 FCT of the Family Court Act that, "The mother or the respondent shall be competent to testify but the respondent shall not be compelled to testify." The sole argument advanced in this court by the Corporation Counsel in support of the Family Court's ruling is that because subsequently the respondent-appellant, after the close of petitioner's evidence, testified in his own defense, as part of his own case, his objection was waived, after the event. The contention is without merit. The statute imposes a clear prohibition and confers a corresponding privilege. Having been subjected to a long and comprehensive examination, without cross-examination by his own attorney, respondent-appellant is not required now to demonstrate prejudice or to furnish some indication either that his testimony, given prior to that of complainant, assisted in the construction of her case or that his subsequent testimony in defense was, in practical effect, compelled by the evidence earlier adduced from him; nor is this court required to conjecture as to the effect of the compulsion. We reach no other question. Order reversed, on the law and the facts and in the interests of justice, and a new trial ordered. Gibson, P.J., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.