24 S.E. 660 | N.C. | 1896
Lead Opinion
In the Act of'1879, Oh. 92, Sec. 2,{The Code, Sec. 35,) it was provided that “ when the issue of paternity shall be found against the putative father, or when he admits the paternity, he shall be fined by the judge or justice not exceeding ten dollars, which shall go to the school fund of the county.” In the same section it was provided further that “ the court shall make an allowance to the woman not exceeding the sum of fifty dollars, to be paid in such installments as the judge or justice shall see fit,” &e. This provision was first enacted in the chapter of the Acts of 1879 which was passed for the purpose, as appears upon its face, of enlarging the criminal jurisdiction of justices of the peace (under the Constitution, Art. IY., Sec. 27) by limiting the punishment so that it could not exceed a fine of fifty dollars or imprisonment for thirty days. After the passage of the Act, however, the attention of this Court had never been called to the fact that a fine was imposed by this statute until the argument of the case of State v. Burton, 113 N. C., 655. The Court agreed to rest the decision in that case upon other
In State v. Wynne, 116 N. C., 981, the Court, as now constituted, held, without a dissent, that bastardy was a criminal offence complete on the begetting of the child,
We are now urged to overrule all of those adjudications made upon full consideration of the question by two. courts — the majority of the members of which were differently constituted — and declare that the imposition of a pecuniary fine as a punishment for a violation of law does not, ipso facto, create a criminal offence. This persistent effort on the part of counsel to overturn the former rulings of the Court makes it necessary to again adduce the author: ities upon which they were founded.
The Constitution of 1868, as amended in 1875, (Art. I.,. Sec. 13., and Art. IV., Sec. 27,) had authorized the Legislature to provide for the trial of petty misdemeanors without the intervention of a jury, and the boundary line of a. justice’s jurisdiction should depend upon the punishment, prescribed by statute. It must be inferred that, when the Legislature associated bastardy with a number of misdemeanors, the punishment whereof in the same act was. reduced so as to make them cognizable before a justice, it was not accidental, but with a purpose to constitute it a criminal offence, that for the first time it was made punishable by a fine of ten dollars. But not only do the circumstances indicate an actual intention on the part of the-Legislature to create a criminal intention, but the apt words used,exvi termini, can be construed to mean nothing else. Was the construction of the Act of 1879, in the three-recent decisions of this Court, erroneous, as it is now contended it was ?
It is familiar learning that words in a statute must be construed according to their technical meaning, unless a. contrary intent is apparent upon the face of the act.. Luder this rule what must be the interpretation of the provision, that on the admission that the defendant is-the-
Under the Constitution of North Carolina the death penalty can be inflicted in four cases only, all other capital punishment being forbidden. The Legislature is empowered to prescribe as a punishment for all other criminal offences either a fine or imprisonment (with or without hard labor) or both.
When an act affecting the public is forbidden by statute, says Bishop, “ the doing of it is indictable at common-law.” State v. Parker, 91 N. C., 650; 2 Arch. C. L., 2; 2 Hawks. P. C., Ch. 25, Sec. 54; 1 Bishop Cr. L , Section 237. If a crime is a wrong or an act punishable by law in a proceeding conducted in the name of the State, it would seem that there can be no controversy about the fact that this proceeding, conducted in the name of the State, in order to carry out a police regulation, became a crime when made punishable by law by fine appropriated to the school fund, as are all other fines imposed on conviction for crime. It seems neverbefore to have been doubted that the Legislature creates a criminal offence whenever it prescribes that a certain act shall be punishable ■either by fine or imprisonment, or forbids it generally, and by implication empowers the courts to impose either fine ■or imprisonment, as is the case where the law simply ■declares that a certain act shall be deemed a misdemeanor, without providing how it is to be punished. State v.
“ A fine (says Lord CoKE, 1 Coke on Lit., 126b) signi-fieth a pecuniary punishment for an oifence or contempt committed, imposed by the judgment of a court.” 7 Am. & Eng. Enc., 991. If a fine is either a punishment for a criminal oifence or a contempt, there being no pretense that begetting a bastard is a contempt, it must be a criminal offence.
The Scotch definition of a criminal offence, which was founded upon pi-mciples identical with the common-law, declared an act made punishable by law, either by corporal punishment or pecuniary mulct, to be a crime. McKenzie Cr. Law, 3.
The Act of 1791, Potter’s Revisal, p. 14, Sec. 10, and all subsequent enactments, coutain substantially the same provision as is still contained in Section 32 of The Code, that the father, rrpon the finding of the issue of paternity against him, “ should stand charged, with the maintenance of the child, as the court may order, and shall give bond,. &e.” Haywood’s Manual, p. 446 ; Act of 1814, Ch. 870; 871 ; 2 Potter’s Revisal, p. 304 ; 1 Revised Stat., Ch. 12, Sec. 4; Revised Code, Ch. 12, See. 4; Battle’s Rev., Ch. 9, Sec. 4.
The Act of 1879, which is embodied in Section 35 of The Code, is in direct conflict with the language quoted from Section 32, in providing that “ the court shall make an allowance to the woman, not exceeding the sum of fifty dollars, tobe paid in such installments as the judge or justice shall see fit, and shall give bond, &c,” instead of standing chargeable to the county as to amount as well as date of payment, as the court might determine. Clearly the effect of the passage of the Act of 1879 was, until The-Code took effect in 1883, to repeal this portion of the old
Granting, then, that the Act of 1879 created a criminal oifence, the re-enactment of the old provision, in Section 32 of The Code, that “ from the judgment and finding, the affiant, the' woman, or the defendant may appeal to the next term of the superior court &c.,” would be void, if the principle is properly stated by Bishop. It is the duty of courts however, as far as it can be done without violating a constitutional principle, to reconcile apparent conflicts in two statutes, and construe them so as to give effect to both. Winslow v. Morton, at this Term. It has been held in State v. Wynne, supra, that the criminal offence is within
For the reasons given, the judgment of the court below is reversed, and the defendant is entitled to be discharged.
Eeversed.
Dissenting Opinion
(dissenting): Up to and including State v. Edwards, 110 N. C., 511, (in which the authorities are.collected,) the decisions of this Court were uniform that proceedings in bastardy were civil not criminal. In State v. Burton, 113 N. C., 655, it was intimated, but not decided, that they might be construed to be criminal actions. This has been followed by Myers v. Stafford, 114 N. C., 234, (dissenting opinion, p. 689,) ■which held, by a divided Court, that it was a criminal action, and two decisions to that effect have since been made, but the constantly increasing perplexity and difficulties arising from this construction, and which threaten to virtually nullify the act, warn us to return to the ancient land-marks and show the peril of departing from them.
For the first time, the effect of the new departure has brought us face to face with this question. The Legislature has provided (Code, Sec. 32) that from the judgment and finding on the trial before the justice, “the-affiant, the woman or the defendant may appeal to the next term of the superior court of the county where the trial is to be had de novo.” Now, we are asked to nullify this express provision of the law-making power upon the ground that, this being a criminal action, no appeal lies from the judgment of the magistrate if in favor of the defendant. The power of the Legislature to enact laws cannot be abridged or denied except when their action is clearly contrary to
1. If Sections 32 and 35 are incompatible, the provision of Section 35, authorizing the $10 penalty, should be held nullified, rather than the express provisions of Section 32. To disregard the latter is to change the whole nature of the proceeding. In construing statutes, particular stress is laid upon the mischief to be remedied. The mischief to be remedied here is not to make the begetting of a bastard child a criminal offence and to collect the petty penalty of $10 therefor. Clearly not, for there is already the criminal offence of fornication and adultery, admitting of far heavier penalty and even when no child is begotten. Besides, if bastardy is a criminal offence, the woman would be liable as an aider and abetter, a co-principal, which is cleai’ly' not contemplated by the statute. The object of the statute, through and through, is to provide for the maintenance of the child and prevent its being a charge upon the county, which is a civil, not a criminal, proceeding. This is the evident purport of the whole chapter on bastardy, and has been so recognized by a long and, until very recently, an unbroken line of decisions. Section 32 directs that the judgment, if against the defendant, shall be “ for the maintenance of the child,” a civil judgment. If the incidental power given by Section 35 to impose a penalty of $10 conflicts with the entire balance of the chapter, and the evident purpose of this long-established legislation, then that provision should be held a nullity, and not the other provisions and evident intent of the entire chapter.
3. If, however, the recent doctrine were reiterated that the incidental $10 penalty changes the whole nature of the proceeding, still it does not follow that the express provision of the statute, giving the woman the right of appeal, is unconstitutional. The provision that no one shall be twice in jeopardy means simply that no one shall be tried in another action for a criminal offence after a verdict either of conviction or acquittal in a trial for the same offence. It does not forbid a review of the same case by appeal, which is merely a continuation or prolongation of the same. It is true that appeals, except on special verdicts and in certain other limited cases, are not given to the State. But that restriction is simply by virtue of the statute and not by any constitutional provision. State v. Taylor, 8 N. C., (1 Hawks.,), 162, is put expressly on that gi-onnd, and is cited as authority for a similar ruling in State v. Credle, 63 N. C., 506. Accordingly, appeals from a general verdict of not guilty were recognized in this State, (State v. Haddock,) 3 N. C., 162 (348); State v. McLelland, 1 N. C., 353 (569), till restricted by statute, Acts 1815, Ch. 895. But even if this be a criminal proceeding, the Legislature has chosen to give the “woman and the affiant ” the right to appeal, and in so doing the legislative department acted within the limits of its constitutional authoruy. That an appeal can be authorized by statute on behalf of the State from a judgment discharging the prisoner on a special verdict, or on a motion to quash, or in arrest of judgment, or from a verdict pro
Lead Opinion
The following issues were submitted to the jury by the court:
1. "Is the prosecutrix bound by a former acquittal upon a trial before a justice of the peace?" Answer: "No."
2. "Is the defendant the father of the bastard child of the prosecutrix?" Answer: "Yes."
Defendant was convicted, and appealed.
Defendant excepted to the overruling of his plea of former acquittal.
In chapter 92, sec. 2, 1879 (The Code, sec. 35), it was provided that "when the issue of paternity shall be found against the putative father, or when he admits the paternity, he shall be fined by the judge or justice not exceeding ten dollars, which shall go to the school fund of the county." In the same section it was provided further that "the court shall make an allowance to the woman, not exceeding the sum of fifty dollars, to be paid in such installments as the judge or justice shall see fit," etc. This provision was first enacted in the chapter of the Laws of 1879, which was passed for the *769
purpose, as appears upon its face, of enlarging the criminal jurisdiction of justices of the peace (under the Constitution, Art. IV, sec. 27) by limiting the punishment so that it could not exceed a fine of fifty dollars or imprisonment for thirty days. After the passage of the act, however, the attention of this Court had never been called to the fact that a fine was imposed by this statute until the argument of the case of S. v. Burton,
In S. v. Wynne,
We are now urged to overrule all of those adjudications, made upon full consideration of the question by two Courts, the majority of the members of which were differently constituted, and declare that the imposition of a pecuniary fine as a punishment for a violation of law does not, ipso facto, create a criminal offense. This persistent effort on the part of counsel to overturn the former rulings of the *770 Court makes it necessary to again adduce the authorities upon which they were founded.
The Constitution of 1868, as amended in 1875 (Article I, section 13, and Article IV, section 27), had authorized the Legislature to provide for the trial of petty misdemeanors without the intervention of a jury, and the boundary line of a justice's jurisdiction should depend upon the punishment prescribed by statute. It must be inferred that, when the Legislature associated bastardy with a number of misdemeanors, the punishment whereof in the same act was reduced so as to make them cognizable before a justice, it was not accidental, but with a purpose to constitute it a criminal offense, that for the first time it was made punishable by a fine of $10. But not only do the circumstances indicate an actual intention on the part of the Legislature to create a criminal intention, but the apt words used,ex vi termini, can be construed to mean nothing else. Was the construction of the act of 1879 in the three recent decisions of this Court erroneous, as it is now contended it was?
It is familiar learning that words in a statute must be construed according to their technical meaning, unless a contrary intent is apparent upon the face of the act. Under this rule, what must be the interpretation of the provision that on the admission that the defendant (1212) is the father, or the finding of the issue of paternity, "he shall be fined by the judge or justice of the peace not exceeding ten dollars, which shall go to the school fund of the county"? "A crime is an act made punishable by law." Broom's P. of Law, sec. 162; 1 Wharton's Cr. Law, sec. 14, and note. "A crime," says Bishop, "is any wrong which the government deems injurious to the public at large and punishes through a judicial proceeding in its own name." 1 Bishop Cr. Law, sec. 32.
Under the Constitution of North Carolina, the death penalty can be inflicted in four cases only, all other capital punishment being forbidden. The Legislature is empowered to prescribe as a punishment for all other criminal offenses either a fine or imprisonment (with or without hard labor), or both.
When an act affecting the public is forbidden by statute, says Bishop, "the doing of it is indictable at common law." S. v. Parker,
"A fine (says Lord Coke, 1 Coke on Lit., 126b) signifieth a pecuniary punishment for an offense or contempt committed, imposed by the judgment of a court." 7 Am. and Eng. Enc., 991. If a fine is either a punishment for a criminal offense or a contempt, there being no pretense that begetting a bastard is a contempt, it must be a criminal offense.
The Scotch definition of a criminal offense, which was founded upon principles identical with the common law, declared an act made punishable by law, either by corporal punishment or pecuniary mulct, to be a crime. McKenzie Cr. Law, 3.
The act of 1791 (Potter's Revisal, p. 14, sec. 10) and all subsequent enactments contain substantially the same provision as is still contained in section 32 of The Code, that the father, upon the finding of the issue of paternity against him, "should stand charged with the maintenance of the child, as the court may order, and shall give bond," etc. Haywood's Manual, p. 446; Laws 1814, ch. 870, 871; 2 Potter's Revisal, p. 304; 1 Revised Stat., ch. 12, sec. 4; Revised Code, ch. 12, sec. 4; Battle's Rev., ch. 9, sec. 4.
The act of 1879, which is embodied in section 35 of The Code, is in direct conflict with the language quoted from section 32, in providing that "the court shall make an allowance to the woman, not exceeding the sum of fifty dollars, to be paid in such installments as the judge or justice shall see fit, and shall give bond," etc., instead of standing chargeable to the county, as to amount as well as date of payment, as the court might determine. Clearly the effect of the passage of the act of 1879 was, until The Code took effect, in 1883, to repeal this portion of the old Revised Code, as compiled in (1214) Battle's Revisal. Either the court had the power to make an unlimited allowance or one limited to $50. It is manifest that the commissioners inadvertently brought forward and the Legislature inadvertently enacted in The Code provisions apparently conflicting. In the same way the later provision of The Code (section 35), in making bastardy a criminal offense, deprives the State of the right of appeal from a verdict of "not guilty." "The pre-existing law and practice, recognized and enforced in numerous adjudications," said the Court in S. v.Powell,
Granting, then, that the act of 1879 created a criminal offense, the re-enactment of the old provision, in section 32 of The Code, that "from the judgment and finding the affiant (the woman) or the defendant may appeal to the next term of the Superior Court," etc., would be void, if the principle is properly stated by Bishop. It is the duty of courts, however, as far as it can be done without violating a *773
constitutional principle, to reconcile apparent conflicts in two statutes and construe them so as to give effect to both. Winslow v. Morton,ante, 486. It has been held, in S. v. Wynne, supra, that the criminal offense is within the exclusive jurisdiction, of a (1216) justice for twelve months from the time the child is begotten; and if that was true the justice here had jurisdiction, and any statute providing for an appeal would be, pro tanto, void. While the defendant, in conviction, may be committed to a house of correction or to prison, yet when committed to prison or prayed into custody, without further action by the State or the complainant, he will be discharged on taking the required insolvent oath. S. v. Burton and S. v. Wynne, supra;Myers v. Stafford,
For the reasons given, the judgment of the court below is reversed, and the defendant is entitled to be discharged.
Reversed.