57 S.E. 398 | N.C. | 1907
The evidence tended to show that the feme plaintiff had been delivered of a bastard, which had passed through the full period of gestation, but was born dead. It further tended to show that the defendant was thirty-eight years of age and the mother of the child sixteen years old; that she was sick for several weeks before and for several weeks after her confinement, and all the time was under the care of a physician; that she supplied herself with medicines and paid the child's burial expenses.
The defendant moved to dismiss the proceeding upon the ground that it will not lie where the child was still-born. He also requested the Court to charge the jury that the issue, "Is the defendant the father of the bastard child begotten upon the plaintiff?" should be answered "No," for the reason that no child had been born alive for the defendant to support. Both the motion and the prayer for this instruction being refused, the defendant excepted. The jury found the issue in favor of the plaintiffs, and the Court, thereupon, adjudged that the defendant pay a fine of one dollar, an allowance to the feme plaintiff of forty *505
dollars, and the costs, and "in default of such payment the defendant, (685) was sentenced and committed to the house of correction, to wit, the common jail of Buncombe County, for the term of six months, with authority to the County Commissioners to have him to do work on the public roads of the county, the sum of ten dollars per month to be allowed for his labor, which shall be paid into Court for the use of thefeme plaintiff, and paid to her in satisfaction of the said allowance and the fine and costs." The defendant excepted to the judgment and appealed.
This Court in two recent decisions has fully determined the nature of this proceeding. It has been adjudged to the civil and not criminal in its nature, and is intended merely for the enforcement of a police regulation.S. v. Liles,
It is true the word "fine" does not always mean a pecuniary punishment of an offense inflicted by a court in the exercise of criminal jurisdiction. It has other meanings, and may include a forfeiture, or a penalty recoverable by civil action. People v. Nedrow, (686)
Nor could the Court require the defendant to do work upon the public roads. The Revisal, sec. 262, authorizes him to be committed to the house of correction. Whether or not this provision is constitutional we need not say. There is no house of correction in Buncombe County, as appears by the judgment. The Court could only commit him to the jail until he performed its order. It has been held by us that the Legislature did not intend to punish an immoral or unlawful act, but merely to enforce obedience to the just requirement of the law, that the putative father should provide for the support of his offspring, and save the mother and the county harmless.S. v. Brown,
The other objections of the defendant are untenable. The death of the child at its birth can make no difference as to the right of its mother to institute the proceeding. The statute expressly authorizes the mother to proceed against the putative father before the child is born, that *507
is, when it is en ventre sa mere. Revisal, secs. 253 and 254; (688)S. v. Crouse,
This eliminates the fine and the alternative sentence of imprisonment in the house of correction with direction that the defendant be worked on the public roads. The allowance will stand, and the defendant may be imprisoned in the county jail until he pays it and the costs, or until he is otherwise discharged according to law.
There was error in the judgment of the Court.
Modified.
Cited: S. v. McDonald,
(689)