Morgan v. State

• Decision Date: 30 June 1938
• Docket Number: 6 Div. 364.
• Citation: 236 Ala. 381,182 So. 468
• Parties: BYRD MILLER MORGAN v. STATE.
• Court: Alabama Supreme Court

182 So. 468

236 Ala. 381

BYRD MILLER MORGAN v. STATE.

6 Div. 364.

Supreme Court of Alabama

June 30, 1938

Certiorari to Court of Appeals.

A. A Carmichael, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.

Ernest L. Hargrave and S.D. Murphy, both of Birmingham, amici curiæ.

V. H Carmichael, of Jasper, for respondent.

Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Morgan v. State, 182 So. 466.

PER CURIAM.

Writ denied.

ANDERSON C.J., and BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur.

GARDNER and THOMAS, JJ., dissent.

THOMAS Justice (dissenting).

The certiorari is requested on two propositions. First, failure of applicant to make assignment of error, which is alleged to be necessary in a bastardy proceeding; and second, error of the Court of Appeals in basing its opinion on a "dictum taken from the opinion written by the Supreme Court in the case of Coan v. State, 25 Ala.App. 62, 141 So. 262," certiorari denied, 224 Ala. 584, 141 So. 263.

The law covering the subject connects bastardy statutes and a proceeding under this statute for nonsupport, Sections 4479, 4480, Code, in such wise as to compel a consideration of the paternity of a child under either proceeding.

In the Coan Case, supra, language to the following effect is employed: "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."

It may be conceded that the foregoing statement was not essential to that decision, and, therefore, is dictum.

The Court further stated in the same case, as follows: "But where the paternity of the child has been judicially established, or is acknowledged by the putative father, the proceedings provided by sections 4479-4495 may be instituted to enforce the duty of support. Patterson v. State, 23 Ala. App. 342, 127 So. 792; Id., 221 Ala. 96, 127 So. 793. Such statutes do not impinge constitutional provisions prohibiting imprisonment for debt. 7 C.J. 1003, § 150."

It is recited by the Court of Appeals, 182 So. 466, that,

"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 Non-support Statutes' ( Patterson v. State, 23 Ala.App. 342, 127 So. 792)--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 obviously having been no 'judicial determination of the paternity of the child * * * under the bastardy statutes'--the proceeding under that series of statutes having been dismissed--it would seem, and we hold, that the judgment appealed from is unwarranted, unless it appears that appellant had 'acknowledged the child as his child.'

"We have carefully examined the testimony offered on behalf of the State--none being offered on behalf of appellant--and are unable to find any from which a fair inference might be drawn that appellant ever, at any time, 'acknowledged the child as his child.' "

Adverting to Chapter 157 of the Code of 1923, Section 4479, "Definitions" we quote the following: "The word 'parent' or 'parents' as used in this chapter shall include natural legal parent or parents, or other persons who shall have legally acquired the custody of such child or children, and the father of such child or children, though born out of lawful wedlock."

Following this is Section 4480 of the Code, in which provision for punishment is made for desertion, neglect or refusal of the father to provide for support and maintenance of a child or children under the age of eighteen years, and under which section the instant prosecution was initiated.

Under Chapter 85, Section 3416, Code, any single woman, pregnant with or delivered of a bastard child, may make complaint on oath to any justice of the county where she is so pregnant or delivered, accusing any one of being the father of such child, etc. Provision is made for the trial of the issues of fact before the justice of the peace; and on examination, if probable cause, held under bond to appear at court and answer. (Code, §§ 3417, 3418). It is further provided that such justice must return the complaint and bond to the clerk of the circuit court, or court of like jurisdiction; that proceedings be conducted in the name of the state as plaintiff and the accused as defendant; but "no proceeding shall be instituted under this chapter after the lapse of one year from the birth of the child, unless the defendant has, in meanwhile, acknowledged or supported the child." (§§ 3419 to 3422). It is further provided by Section 3425 that "The court, on the appearance of the accused, must, if he demand it, cause an issue to be made up, to ascertain whether he is the real father of the child or not." Section 3427 provides that, "On the trial of such issue, if found against the defendant, judgment must be rendered against him for the costs, and he must also be required to enter into bond with surety, to be approved by the judge, in the sum of one thousand dollars, payable to the state, and conditioned to pay the costs of the proceeding, and such sum, not exceeding one hundred dollars a year, as the court may prescribe, on the first Monday in January, in each year, for ten years, to the judge of probate of the county, for the support and education of the child, which bond must be recorded." It is further provided that on failure to give such bond judgment will be rendered against the defendant and he must produce the amount to be paid yearly, or be sentenced as provided by the statute. The right of appeal is secured to either of the parties aggrieved in bastardy proceedings in the manner indicated in section 3439 of the Code.

In the nonsupport statutes, Code Section 4479 et seq., the right of appeal to the circuit court is provided in § 4485; and the right of appeal from juvenile or domestic relations courts and from the final judgments rendered therein would be governed by the general statutes and those for appeal from final judgments by either party aggrieved.

It should be further noted that in § 4494, Code, provision is made that no other evidence shall be required to prove marriage of such husband and wife or that such person is the lawful father or mother of such child or children that is or should be required to prove such fact in a civil action; and further providing as to the prohibition of disclosure of confidential communication between husband and wife, that the same shall not apply.

Section 4495 specifically declares that the chapter shall be liberally construed in order to accomplish the beneficent purposes therein provided for.

It is only necessary to read Sections 4479, 4480 of the Code, the nonsupport statute, to find the authority given to...