Morgan v. State

• Decision Date: 17 May 1938
• Docket Number: 6 Div. 261.
• Citation: 28 Ala.App. 241,182 So. 466
• Parties: MORGAN v. STATE.
• Court: Alabama Court of Appeals

182 So. 466

28 Ala.App. 241

MORGAN v. STATE.

6 Div. 261.

Court of Appeals of Alabama

May 17, 1938

Rehearing Denied June 7, 1938.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Byrd Miller Morgan was convicted of nonsupport, and he appeals.

Reversed and rendered.

Certiorari denied by Supreme Court, in Morgan v. State, 6 Div. 364, 182 So. 468.

V. H Carmichael, of Jasper, for appellant.

A. A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

RICE Judge.

Bertha Box, an unmarried woman, became pregnant. In fact, before the institution of this prosecution, she gave birth to a child.

But after Bertha became pregnant, and before her child was born she accused, in the courts, Byrd Miller Morgan of being its father.

To use her own language:

"I started a bastardy proceeding first, and Mr. Morgan had an agreement whereby we compromised and dismissed the bastardy proceeding. He paid me $25.00 as a compromise of that proceeding.

"Mr. Morgan gave the money to Mr. Faison (the Justice of the Peace) and he (Mr. Faison) gave me the $25.00 for Mr. Morgan. In other words, Mr. Morgan gave me $25.00 to pay the expense of my confinement, and that's all he did. After my confinement he hasn't given me anything for the support of the child."

And the State, upon the trial resulting in the judgment from which this appeal is taken, introduced in evidence the paper signed by Bertha upon the dismissal of the "bastardy proceeding" referred to above, which instrument we quote in full, to wit:

"Whereas, I Bertha Box, a single woman is pregnant with a child and having made affidavit and obtained a warrant charging B. M. Morgan with being the father of the child and having some doubts as to the paternity of the child do now for and in consideration of the sum of Twenty Five dollars, the receipt of which is hereby acknowledged and the further promise of the said B. M. Morgan to defray the expenses and doctor's charge during my confinement I do now and hereby release the said B. M. Morgan of any further responsibility for the maintenance, rearing and education of the child.

"Bertha Box.

"Subscribed before me this the 20th day of February, 1936.

"I. R. Faison, Justice of Peace."

Some eight months after the birth of her baby Bertha instituted the present prosecution, under the provisions of Code 1928, § 4480.

This section 4480 of the Code, one of the sections of chapter 157--said chapter sometimes referred to as containing the "Desertion and Nonsupport Statutes" (Patterson v. State, 23 Ala.App. 342, 127 So. 792, 793)--contains, pertinently, the following, to wit: "Any parent who shall without lawful excuse desert or wilfully neglect or refuse or fail to provide for the support and maintenance of his * * * child * * * under the age of eighteen years * * * [he] she * * * being then and there in destitute or necessitous circumstances, shall be guilty of a misdemeanor." And that said child is born out of wedlock matters not. Code, § 4479.

We have specifically held that a mother, seeking to "call to account" the alleged father of her illegitimate child, may proceed either under the provisions of Code 1928, § 4480 (aided by the allied sections of chapter 157 of the Code), or under the provisions of sections 3416-3439 (chapter 85 of the Code), commonly known as the "Bastardy Statutes." Coan v. State, 25 Ala.App. 62, 141 So. 262--certiorari denied Id., 224 Ala. 584, 141 So. 263; Patterson v. State, supra.

But the Supreme Court, in denying the petition for certiorari in our case of Coan v. State, supra, went ahead to say--and their pronouncement is of course binding upon us (Code 1923, § 7318)--that "these last-mentioned sections (sections 4479-4495) make no provision for a judicial determination of the paternity of the child, and until there is such judicial determination under the bastardy statutes, they have no application to bastard children, unless the putative father acknowledges the child as his child." (Italics supplied by us.)

So here, there...