State v. Currie

161 N.C. 275 | N.C. | 1912

WalkeR, J.,

after stating the case: We said in S. v. Addington, 143 N. C., 683, that our decisions had finally determined this to be a civil proceeding for the enforcement of a police regulation, so far as it is necessary for the purpose of securing an allowance to the woman and to relieve the county from the burden of supporting the child. S. v. Liles, 134 N. C., 735; S. v. McDonald, 152 N. C., 802. The procedure in such cases is clearly prescribed by the statute. The warrant is issued by a justice of the peace, “upon the voluntary affidavit and complaint of the mother of the bastard,” and the defendant, or putative father, is served and brought before him to answer the charge. If he denies the accusation under oath, the justice proceeds to try the issue of paternity; and if he is found to be the father of the child, or if he fails to deny the accusation under oath, “he shall stand charged with the maintenance of the child, as the court may order.” Revisal, secs. .252-254. By section 255, the “examination of the woman” is made “presumptive evidence against the person accused, subject to be rebutted by other testimony which may be introduced by the defendant.” We find nothing in the statute (sec. 254) requiring that the defendant shall make his denial in writing, though it must be under his oath. Pleadings before justices may be oral, except when specially provided that they shall be in writing. In this case the record entries show that an issue was made up and tried'before the justice, with the result that the defendant was acquitted. The case was tried before the justice as if the denial had been made. There could have been' no issue to try unless it bad been, and after verdict we must assume tbat tbe trial proceeded regularly and tbe justice failed to make tbe required entry. S. v. Farrar, 104 N. C., 702. It appears inferentially tbat defendant was examined before tbe justice on oatb. It is true tbat tbe justice should bave taken tbe denial of defendant under oatb before proceeding- to try tbe case, so as to make up tbe issue, and should regularly note it on bis docket and in bis return. Under tbe facts and circumstances of this case, if tbe record was not complete in this respect, tbe judge should bave allowed tbe denial to be entered nunc pro tunc. But while tbe return of tbe justice does not technically comply with tbe directions of tbe statute and is not in tbe regular form, it was substantially sufficient for tbe court to act upon, and if a more perfect return was desired, there was ample power to bave one sent up. Eevisal, sees. 1467 and 1494. “No process or proceeding begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or Bet aside for tbe want of form, if tbe essential matters are set forth therein; and the court in which any such action shall be pending shall bave power to amend any warrant, process, pleading, or proceeding in such action, either in form or substance, for tbe furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment.” Eevisal, sec. 1467. “If tbe return be defective, tbe judge or clerk of tbe appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with tbe order by attachment.” Eevisal, sec. 1494. It would not be fair or just to tbe defendant, when tbe case was beard in tbe justice’s court, either upon a proper denial, not noted in the return, or as if one bad been made, without objection from tbe State or tbe prosecutrix, and after an acquittal, to summarily convict him upon tbe mere affidavit of tbe woman, and without giving him an opportunity to defend himself.

Tbe appeal was docketed at tbe first term succeeding tbe date of tbe trial before tbe justice, and was prosecuted in due time. We infer from tbe nature of tbe findings of fact, in connection with tbe motion of defendant to dismiss tbe appeal, tbat it was based upon tbe defectiveness of the return. It was not in proper form, as we have said, but enough' appeared therefrom to inform the court of the course of the |>roceedings before the justice and to enable it to proceed to the trial of the case. If it was incomplete, the motion should have been to require a better return from the justice. The judge was right in refusing the'motion to dismiss, but he erred in not having the case tried upon the general issue, or the denial by defendant of the paternity of the child as alleged by its mother.

The judgment will be vacated and a new trial is ordered.

New trial.