Collins v. StateCollins v. State
- Reporters:
- Before:
- Clopton
On complaint being made by affidavit of Mattie Bean, that the offense of bastardy was committed, and that Albert Bell was guilty thereof, a warrant, following the complaint in the description of the offense, was issued, under which he was arrested. On the investigation before the justice of the peaсe, the defendant was sworn and testified as a witness. The indictment charges him with committing perjury, while so testifying. While a proceeding in- a cаse of bastardy partakes of the naturе of both a criminal prosecution and a civil suit, and is regarded as quasi-criminal, bastardy is not a public offense, as public offensеs are defined and classified by the statutes. — State v. Hunter, 67 Ala. 81; Smith v. State, 73 Ala. 11; Satterwhite v. State, 28 Ala. 65. A proceeding in bastardy can only be commenced before a justice of the peace. His jurisdiction is statutory, and depends on the existence of the preliminary facts — that a woman, who is unmarried, and who is pregnant with, оr has been delivered of a bastard child, in thе county in which the justice acts, complаins on oath, accusing a particular‘рerson of being the father of such child. Though thе complaint need not set forth the jurisdictional facts, and their existence may be dеtermined by other evidence, it is requisite to thе jurisdiction of the justice to issue the warrant, that their existence be ascertained, and be shown on the face of the proсeedings, either in the complaint, the warrant, or elsewhere.— Williams v. State, 29 Ala. 9 ; *435Code, § 4071. The warrant is void on its face. It does not state an offense by name, or so that it can be clearly inferred; and neither of the jurisdictional facts, еssential -to support a proceeding in bastardy, nor their determination by the justice, аppears on the face of the proceedings. — Noles v. State, 24 Ala. 672; Counts v. Harlan, at present term; Thrash v. Bennett, 57 Ala. 156.
Thе oath administered to the defendant on thе investigation before the justice of the рeace, was not an oath authorizеd by law. No oath taken before an officer administering justice under color of authority, which is-in fact unwarranted and void, can, though fаlse, amount to perjury. “A suit which is actually void аnd null, from want of jurisdiction, or other incurable defect, is not one in which perjury can be committed.” 2 Whar. Crim. Law, § 127-2; 2 Bish. Or. Law, § 1028; Code, $5 4113; Banks v. State, 28 Ala. 14.
The judgment must be revеrsed; and as it is evident the defendant can never be convicted, an order will be made quashing the indictment, and discharging the defendant.