Hanna v. State

60 Ala. 100 | Ala. | 1877

MANNING, J.

Upon affidavit of one Louisa J. McAnally, a single woman, that she had been delivered of a bastard child in Blount county, and that appellant was the father of the child, he was brought, by a warrant issued thereupon, before a justice of the peace ox said county, and entered into an undertaking of bail to appear at the next term of the Circuit Court of the same county, “to answer to a prosecution and complaint in bastardy.” The proceedings were under the statutes embraced in chapter 6, beginning with section 4071 (4396) of the Code of 1876, and “conducted in the name of the State as plaintifff, and accused as defendant.”— § 4092. The charge against him was filed in the name of the State, by its solicitor, and over his signature ; and the defendant, appearing in person and by counsel, moved to quash the proceedings; alleging that the bond was not sufficient in law to bring into exercise the jurisdiction of the Circuit Court, and that no examination was shown to have been had by the magistrate.

1. One of the points made is, that the bond fails to identify the case to which it refers. To this there are two answers. The prosecution is initiated by the affidavit, or “complaint on oath” (§ 4071) of the mother of the bastard child; which affidavit is not objected to, as in any respect insufficient. It describes an offense, of which the Circuit Court, a court of general jurisdiction, has cognizance, to compel the father to secure a provision, prescribed by statute, for the child; and the bond required by the justice of the peace is only a method of compelling the defendant to ap^pear in court, to answer to the charge to be made on behalf of the State, against hiru. Mb-en hag <jone this, the bond lias served the purpose for which it was taken; and not being forfeited, no question of its sufficiency can arise. And secondly, according to section 4853 (4245) of the Code of 1876, the bond is not invalid, “although the offense, judgment, or other matter, is incorrectly described in such undertaking ; the particular case, or matter, to which the undertaking is applicable, being made to appear to the court.” The particular case is here shown by the affidavit, which was filed by the magistrate, with the bond, as the statute requires (§ 4073), and with the warrant, in the Circuit Court.—See The State v. Eldred, 31 Ala. 393; and Vassar v. The State, 32 Ala. 586.

.2. The other objection is, that the jurisdiction of the Circuit Court did not attach, because it nowhere appears that the defendant was brought before the justice of the peace, and an examination thereupon had by him, upon which he required the bond to be given. It has never been usual, in practice, for justices of the peace, in any such cases, when bail-bonds are in fact executed, to make formal entries of judgments, setting forth that, after examination had, just cause was shown why the accused should be bound over to appear at the Circuit Court, to answer for the offense charged against them, and that thereupon they were required to execute such bonds. When the magistrate has taken a bond, and in writing approved it, and filed it in the Circuit Court, this is sufficient evidence that he satisfied himself it ought to have been taken. And according to the terms of the statute (§ 4073), nothing more is necessary to enable the Circuit Court, a court of general jurisdiction, to take cognizance of a cause like the present, than the filing of the bond and affidavit, the latter being the “complaint” mentioned in that section, and the “complaint on oath” mentioned in section 4071. Upon these, the court is authorized to proceed, as in the present instance it did, by causing an issue to be made up, and tried by a jury.

3. The motion to quash being overruled, appellant moved to dismiss the cause, and afterwards filed a plea to have it abated, on the ground that the mother of the child was a minor, and had not appeared by next friend. But she is not the plaintiff. She is only a witness, on whose affidavit, or “complaint on oath,” the prosecution by the State is begun ; and although, if the State fail in it, she may be taxed with the costs, this can not be a reason why it should be held that she must make an affidavit by prochein ami.

Let the judgment of the Circuit Court be affirmed,