134 N.C. 735 | N.C. | 1904
This is a proceeding in bastardy. Tbe prosecutrix was a married woman at tbe time of tbe birth of tbe child, which was born four or five months after mar
The law as to proceedings in bastardy first appears in the Laws of North Carolina, 1741, chapter 14, section 10, and may be found at p. 174 of volume 23, State Records, in which volume the laws still extant from 1666 to 1791 are collected and reprinted. Some slight changes were made in 1799, chapter 531, section 2, and other statutes mentioned in the heading to section 32 of the present Code (of 1883). The statute is also codified in Revised Statutes, chapter 12, section 1, and Revised Code, chapter 12, section 1. Clearly the object of the statute is in no sense criminal, but is expressed on its face to be a fiscal regulation to compel the mother or (if the father was declared by her and proved to be such) the father to give sufficient surety “to keep such child from being chargeable to the County” for its maintenance. Accordingly, we find that in an unbroken line of decisions down to and including State v. Edwards, 110 N. C., 511 (1892), in which the authorities are collected, and which was an unanimous opinion, it is held that the proceeding, though it has some
In o'ne of these, State v. Giles, 103 N. C., at p. 396, Smith j O. J., speaking for a unanimous Court, says: “The remaining exception is to the judgment itself as inconsistent with the Constitution, though following the statute, in that it imposes upon the defendant the payment of fifty dollars for the use of the woman and a fine of ten dollars besides; and imprisons for an indefinite period in case of a default in making payment. The fine is quasi penal but the payment of the residue is not, and the proceeding is not in the exercise of a criminal but of a civil jurisdiction in providing for the present support of the child and an indemnity to the county in case of its becoming a further public charge. * * * ippg error this contention consists in regarding the requirement of the payment of these amounts and’ an enforcement of imprisonment as an award of punishment for a criminal offense, which in no sense they are, unless the ten-dollar fine may be so considered. It is but the exercise of a power to compel obedience to the order of the Court, and an imprisonment from which the party may be relieved under the insolvent law, as if committed for fine and costs in a criminal prosecution. The Code, section 2967; State v. Davis, 82 N. C., 610; State v. Bryan, 83 N. C., 611.” This was followed in State v. Edwards, 110 N. C., 511, in which (at p. 512) it is said that though “a fine is imposed by the statute” the action remains a civil proceeding. Although this case was cited in State v. Ostwall and State v. Ballard, this direct ruling on the point was overlooked. The true principle applicable is thus stated by Ruffin, J., in State v. Snuggs, 85 N. C., 541 (upon another section of The Code) : “The statute not only creates the offense but fixes the penalty that attaches to it and prescribes the method
Among the reasons why we return to antiguas vias is that the cases of Myers v. Stafford, State v. Ostwalt and State v. Ballard were decided by a divided court upon the effect of the statute of 1879 imposing (in another section) a fine of ten dollars, which it is held per se changed the proceeding into a criminal action, whereas three opinions of a unanimous court (two of which were not cited in the three cases just named) had held that the statute of 1879 did not change the nature of the action; further, because section 32 from 1741 had contained a provision for a “fine of five dollars” against the woman, and, notwithstanding this, our unbroken line of decisions had held the proceeding to be civil in its nature; because also, to construe the statute criminal in its nature is contrary to its express provisions which declare its object to be to secure sureties to prevent the child becoming a charge on the county; and that if the action were changed into a criminal proceeding, this might negative appeals by the woman and by the State and the use of the woman’s affidavit as presumptive evidence (all of which are given by the statute and are essential to 'its enforcement), and by further requiring a disparity of challenges and proof beyond a reasonable doubt, and other incidents of a criminal action, which would practically make the statute nugatory, and would also repeal the statute of limitation of three years provided by section 36. We do not think such radical changes can fairly be inferred to have been caused.by the incidental authorization in another section of a fine of ten dollars. If the fine cannot be levied as an incident in the civil action, like the fine of $5 upon
Besides, there being already the criminal action for fornication and adultery, there is no need to abolish this proceeding which was enacted to protect the county against being chargeable with the maintenance of the child. If it were a criminal proceeding it is singular that the woman is not made liable when the man is, for if tried for a criminal offense both are guilty, since she was present aiding and abetting in its commission. In construing statutes the mischief to be remedied must be considered, and there was in this matter no defect of criminal proceeding, for fornication and adultery was already a complete remedy.
The weight of authority elsewhere recognizes bastardy as a civil proceeding to enforce a police regulation. Bishop’s Stat. Crimes, section 691; 2 McLain Or. Law, section 1186; 3 Am. & Eng. Ency. (2 Ed.), 874; 3 Ency. Pl. & Pr., 277, which cites numerous cases to that effect from Arkansas, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Nebraska, New Hampshire, New York, North Carolina, Rhode Island and Vermont, and among the States which hold the proceeding neither strictly civil nor strictly criminal, but quasi civil to enforce a police regulation, are cited Alabama, Florida, Michigan, Ohio and Wisconsin. To similar effect is 9
We are constrained to return to the former uniform rulings of this Court that proceedings in bastardy are essentially civil in their nature, though with some anomalous features. State v. Edwards, 110 N. C., 511, and cases there cited. Myers v. Stafford, State v. Ostwalt and State v. Ballard are overruled as to this point, together with any other cases based on the holding by them that bastardy is a criminal proceeding.
The presumption in bastardy proceedings is that the woman is single. State v. Peebles, 108 N. C., 768; State v. Allison, 61 N. C., 346. Here it affirmatively appears that the woman was married both when she made the affidavit and when the child was born. But it was held by Taylor, G. J., in State v. Pettaway, 10 N. C., 623, and by Puffin, G. J., in State v. Wilson, 32 N. C., 131, cited with approval in State v. Allison, 61 N. C., 346, that though the statute specifies “any single woman big with child or delivered of a child,” the subsequent language in the section that the object is to protect the public against the charge of maintaining bastard children, includes married women, since a bastard child can be begotten upon a married woman as well as upon a single woman.
Formerly a child born of a married woman was conclusively presumed to be legitimate, but now legitimacy or illegitimacy is an issue of fact resting upon proof of the impotency or non-access of the husband — see Woodward v. Blue, 107 N. C., 407, 10 L. R. A., 662, 22 Am. St. Rep.,
Though there was error in holding the action to be a criminal proceeding, it was harmless error in the view we have taken, and upon the whole case the judgment below is
Affirmed.