Shows v. Solomon

91 Ala. 390 | Ala. | 1890

STONE, C. J. —

Proceedings in bastardy are said to be quasi-criminal, but they are not strictly so. In their nature, they partake somewhat of the qualities of a civil suit, and, to some extent, of a criminal prosecution.—State, ex rel. v. Hunter, 67 Ala. 81; Dorgan v. State, 72 Ala. 173; Smith v. State, 73 Ala. 11. Maintenance and education of illegitimate offspring, born or to be born, are its purposes and policy. It is instituted by affidavit and warrant of arrest; preliminary investigation is had before a committing magistrate, and the case is sent up to the Circuit Court for trial, if the testimony justify it; and defendant gives bail for his appearance, as in criminal cases. To this extent, the procedure assimilates itself to that of a criminal prosecution ; but it is neither a case for the grand jury, nor is it, in this j>roceeding, prosecuted as an offense against the peace and dignity oí the State. If, on trial in chief, defendant is convicted, no fine is imposed on him. The sentence is, that he pay the costs, and enter into bond conditioned to pay not exceeding fifty dollars a year, as the court may order, for the period of ten years, “for the support and education of the child.” — Code of 1886, § 4854. This is a wholesome municipal regulation, and looks to the welfare of society as well as that of the illegitimate child.

The money in controversy in the present suit was collected on defendant’s forfeited bond, which he gave for his appearance at the Circuit Court.—Code, §§ 4844,4849. The interest on the sum collected was and is payable to the illegitimate child.—Ib. § 4861. On the death of the child, or intermarriage of the parents, “the portion of such judgment paid into the county treasury” must, it would seem, be returned to the defendant.—Ib. § 4864. But we need not, and do not, decide this question.

The present record is silent on many important inquiries. It is not shown whether any trial has been had in the Circuit Court, whether the child is living or dead, whether or not the parents have intermarried, nor whether the interest or any other part of the money has been paid to the child. Nor is it shown whether or not á bond has been given under section 4854 of the Code. On the facts shown, we feel no hesitancy in declaring that the fund sought to be recovered in this suit is not a part of the fine and forfeiture fund which the plaintiff can subject to his demand.

Affirmed.