Land v. State

• Decision Date: 28 October 1907
• Citation: 105 S.W. 90,84 Ark. 199
• Parties: LAND v. STATE
• Court: Arkansas Supreme Court

105 S.W. 90

84 Ark. 199

LAND v. STATE

Supreme Court of Arkansas

October 28, 1907

Appeal from Cleveland Circuit Court; Zachariah T. Wood, Judge affirmed.

Affirmed.

Hunt & Toney, for appellant.

1. It is error to exhibit a bastard child to the jury on the trial. 16 Ill.App. 299; 19 Ind. 152; 24 Neb. 33; 23 Utah 541; 64 Wise. 84. Also to show that the child resembles person charged to be its father, or to show color of its hair and eyes, etc., 4 Allen (Miss.), 435; 45 Md. 144; 16 Me. 38; 29 Hun (N.Y.), 47. The resemblance of an infant is too indistinct and uncertain. 80 Me. 454; 81 Minn. 501; 40 S.W 589; 48 Iowa 43; 64 Wise. 84; 112 Id. 416.

2. The imprisonment feature of the sentence should have been stricken out. Sections 486-7, Kirby's Digest, are unconstitutional and void. Bastardy is in the nature of a civil, and not a criminal, proceeding. 45 Ark. 56; 55 Id. 387; 61 Id. 507. No person can be imprisoned for debt. Art. 2, §§ 9 and 16, Const. Ark.; G. Greene (Iowa), 501; 2 Conn. 357; 6 Blackf. 1; 11 N.H. 137; Kirby's Digest, §§ 720, 723, 486; 59 Ark. 237. See also 1 Martin, Chan. Dec. p. 328.

Byron Herring, for appellee.

The affidavit was based on Kirby's Digest, § 482, and case was tried on Id. § 486. The imprisonment was a mere police regulation, and the law is not void. 21 Ohio St. 353; 116 N.C. 981; 37 S.C. 263; 34 Kans. 96; 13 Neb 193; 69. Ark. 378.

OPINION

MCCULLOCH, J.

Appellant, James Land, was adjudged at the trial below to be the father of a bastard child, and appeals from that judgment.

The trial jury, in addition to finding that appellant is the father of the child, assessed the lying-in expenses of the mother and a monthly sum for the maintenance of the child, and the court rendered judgment against him for the amounts, in accordance with the provision of the statute, which is to the effect that, unless the defendant in a bastardy case shall pay the judgment for lying-in expense, together with the costs of the case, "then the court shall have the power to commit the accused person to jail until the same shall be paid," and that if he shall neglect or refuse to give bond for payment of the monthly sum allowed for maintenance of the child the court "shall commit him to the jail of the county there to remain until he shall comply with such order or until he shall be otherwise discharged according to law." Act March 17, 1879, Kirby's Digest, §§ 486, 487. The appellant objected to the judgment committing him to jail, and now asks that it be set aside.

Counsel for appellant contend that the statute in question authorizing the court in bastardy cases to commit the defendant to jail for failure to comply with the judgment of the court is void. They say that, inasmuch as a proceeding to affiliate a bastard child is of a civil and not a criminal nature, the effect of the order committing the defendant to jail is imprisonment for debt, which the Constitution prohibits.

It is true that the court has held proceedings of this kind to be of civil and not criminal nature. Pearce v. State, 55 Ark. 387, 18 S.W. 380; Chambers v. State, 45 Ark. 56. But it does not follow from this that the Legislature can not the court trying the case to enforce its judgment by committal to jail. On the contrary, such authority may be given, according to the great weight of the adjudged cases, as a proper exercise of the police power of the State, as a regulation for the good of society and public order. Bell v. State, 124 Ala. 77, 27 So. 271; Lower v. Wallick, 25 Ind. 68; Ex parte Wheeler, 34 Kan. 96, 8 P. 276; Ex parte J. C. H., 17 Fla. 362; Ex parte Bridgforth, 77 Miss. 418; State v. Brewer, 38 S.C. 263, 16 S.E. 1001; State v. Giles, 103 N.C. 391, 9 S.E. 433; Musser v. Stewart, 21 Ohio St. 353; Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174.

"The statute," says the Ohio court, "is in the nature of a police regulation. Its main object is to furnish maintenance for the child and indemnity to the public against liability for its support. The act of the putative father is regarded as an offense against the peace and good order of society, and the penalty which the law imposed for his transgression is to enforce upon him the duty of making provision for the maintenance of his illegitimate offspring." Musser v. Stewart, supra. The obligation of the father does not arise out of contract, express or implied, but payment or security for payment is exacted of him by operation of law as indemnity to the public against the burden of supporting the child. The power to require indemnity implies adequate power to enforce the requirement, and the only way in which the court can enforce its order is to imprison the accused until the order is complied with.

But it is said that where the accused is unable to comply with the order the result is to imprison him for an indefinite length of time, perhaps for life. This, of course, depends on his ability or inability to comply with the order of the court. We have no such question before us in this record, as no effort was made by the appellant to show that he was unable to pay the lying-in expense and cost, or to give bond for payment of the monthly allowance. The statute clearly gives the court power to discharge the defendant from custody when it is made to appear to the satisfaction of the court that he can not comply with the order.

Imprisonment under this statute may be likened to that for failure in a divorce case to comply with an order of the court with respect to alimony. This court said, in a case of that kind, "that imprisonment in such a case is justified on the ground of willful disobedience to the orders of the court; and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged." Ex parte Caple, 81 Ark. 504, 99 S.W. 830.

The orders of the court in the present case followed closely the language of the statute, and there is nothing in the record to show that it was not properly made.

It is next contended that the...