Lancaster v. State ex rel. Harrod

• Decision Date: 04 April 1967
• Docket Number: No. 41181,41181
• Parties: Kenny LANCASTER, Plaintiff in Error, v. STATE of Oklahoma ex rel. James H. HARROD, County Attorney, Oklahoma County, Oklahoma, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 714

426 P.2d 714

1967 OK 84

Kenny LANCASTER, Plaintiff in Error, v. STATE of Oklahoma ex rel. James H. HARROD, County Attorney, Oklahoma County, Oklahoma, Defendant in Error.

No. 41181.

Supreme Court of Oklahoma.

April 4, 1967.

Syllabus by the Court

1. A statute will not be construed by the court when the words used in the statute are plain and unambiguous.

2. Title 10 O.S.1961, § 71 permits a trial in a bastardy proceeding to be commenced prior to the birth of the child.

Appeal from the County Court of Oklahoma County, Harold C. Theus, Judge.

Appeal from adverse jury verdict and judgment in a bastardy proceeding. Affirmed.

Robert O. Swimmer, Oklahoma City, for plaintiff in error.

Charles Nesbitt, Atty. Gen., of Oklahoma, Charles L. Owens, Asst. Atty. Gen., Oklahoma City, for defendant in error.

McINERNEY, Justice.

This appeal presents a single issue for our determination concerning the commencement of a jury trial in a bastardy proceeding prior to the birth of the child. The plaintiff in error, who will be referred to as defendant, his position in the trial court contends that it is necessary that the child be born before the commencement of the trial. The State of Oklahoma, plaintiff in the trial court, contends that the statute, 10 O.S.1961, § 71, permits a trial prior to the birth of the child. This precise question has never been determined in Oklahoma. Other jurisdictions reach varying results, and reference to decisions of these states is of little benefit other than to demonstrate the difference of opinion. It is sufficient to say that these states base their conclusions on an interpretation of their own statutes, and we will do likewise.

'It is well settled that bastardy proceedings are controlled absolutely by statute, and nothing can be done in said proceedings not ordained or sanctioned by the statutes.' Benson v. State ex rel. Evans, Okl., 375 P.2d 958.

The plaintiff prosecuted this action under 10 O.S.1961, § 71, which states:

'Whenever any woman residing in any county of this State is delivered of a bastard child, Or is pregnant with a child which if born alive will be a bastard, complaint may be made in writing duly verified, by any person to the county court stating that fact and charging the proper person with being the father thereof. The proceeding shall be entitled in the name of the state against the accused as defendant * * *.' (emphasis supplied)

A complaint stating that the woman is pregnant with a child which if born alive will be a bastard is sufficient to state a cause of action and a demurrer to such a complaint is properly overruled. Harden v. State, 188 Okl. 155, 107 P.2d 364; Burnham v. State et al., 130 Okl. 221, 266 P. 781. Jurisdiction of the county court over the defendant is therefore acquired prior to the birth of a child upon a duly verified complaint. The next section, 10 O.S.1961, § 72, states:

'Upon the filing of such complaint the county judge shall issue his warrant for the arrest of the accused requiring that he be Forthwith brought before such court for Trial.' (emphasis supplied)

In regard to the trial, 10 O.S.1961, § 76 provides as follows:

'Upon the defendant being brought before the court, if he deny the truth of the complaint, the issue to be tried shall be 'guilty' or 'not guilty', and shall be tried Summarily before the court, unless the defendant demand a trial by jury.' (emphasis supplied)

It is clear from a reading of the above three sections that the statutes controlling bastardy proceedings sanction a summary trial upon the complaint of a pregnant woman. The defendant may plead guilty or be found guilty by the court after trial while the woman is still pregnant with a child which if born alive will be a bastard. The language of these statutes is plain and unambiguous, leaving no justification for judicial interpretation. State ex rel. Ogden v. Hunt, Okl., 286 P.2d 1088; Hines v. Winters, Okl., 320 P.2d 1114; Forston v. Heisler, Okl., 363 P.2d 949. There is no requirement under the statutes, §§ 71, 72 and 76, supra, that the birth of a child shall have occurred prior to a trial, and none exists, unless it is contained in 10 O.S.1961, § 77, which states:

'If a jury is demanded, the case shall be set for trial at the next term of court, and in the meantime the defendant may be admitted to bail for his appearance at that time, upon his executing a recognizance in a sum fixed by the court, conditioned that he will appear at the time to which such action may be continued. Upon the execution and approval of such recognizance the defendant shall be discharged. * * *'

and providing further for the disposition of the proceedings if the bond is forfeited. There is no express provision in § 77, supra, that the trial shall not commence until after the birth of the child. Unless such a provision exists by judicial construction, in the absence of an express provision, the contention of the defendant must fail.

The general rules that apply in construing a statute are that the legislative intent must govern, and to arrive at the legislative intent, the entire act must be considered, McSpadden v. Mahoney, Okl., 402 P.2d 656; a construction should be given the act which is reasonable and sensible, Christian v. Shideler, Okl., 382 P.2d 129, and should not be construed so that it would lead to an inconsistency between different parts as they bear upon each other. State ex rel. Rucker v. Tapp, Okl., 380 P.2d 260.

Applying these general rules, we note that we have already determined that the plain words of §§ 71, 72 and 76 provide for summary...