State v. Burton
| Decision Date | 12 December 1893 |
| Citation | 18 S.E. 657,113 N.C. 655 |
| Parties | STATE v. BURTON. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Vance county; Shuford, Judge.
Proceeding by the state and Sally Henderson for the imprisonment of James M. Burton, who had been adjudged the father of Sally's bastard child. From a judgment sentencing him to imprisonment, he appeals. Reversed.
Burton had been adjudged the father of Sally's bastard child at the February term, 1893, of the district court, and sentenced to pay a fine and an allowance to the mother. On failure to comply with the order of the court aforesaid, he was committed to the common jail of Vance county, whence he was regularly discharged, by order of the clerk, March 13, 1893 under the provisions of Code, §§ 2967-2972. At the next term of the said superior court, (May term, 1893,) the solicitor for the state refusing to move in the matter, W. B. Shaw Esq., who appeared on the trial of the proceeding at February term, 1893, with the solicitor, at the instance of the prosecutrix, on the affidavit set out in the record, moved the court for a capias against the defendant, which motion was allowed. The defendant being brought into court, the said W. B. Shaw, assuming to act for the state, moved the court that he be imprisoned, under section 38 of the Code. The defendant, by his counsel, insisted that, the solicitor having refused to act in the matter, the court could not, on motion of another than the solicitor, make any order for his imprisonment under said section 38. Thereupon his honor Judge Shuford, stated that he would act on the matter of his own motion. The defendant then insisted that, having been committed to prison at the February term, 1893, in default of payment and compliance with the order and judgment of the court then rendered, he is not subject to be committed to prison in default of paying the same; that it is not competent for the court, of its own motion, or on the motion of another than the solicitor, and without the motion of the solicitor prosecuting on behalf of the state, to arrest or punish this defendant; that having been once imprisoned, and discharged according to law, he cannot now be resentenced or reimprisoned for the same offense; that, there being no house of correction in the county of Vance, the said section 38 is inoperative; that section 38 of the Code applies only before the commitment of defendant in default of complying with the judgment of the court, and not after his discharge from imprisonment, under section 2967; and moved for his discharge. His honor was of opinion against the defendant on all these questions, and held that, the record of the court at February term, 1893, showing no order for the commitment of the defendant for failing to comply with said judgment, he is subject to be imprisoned under section 38 of the Code, and pronounced the judgment accordingly.
T. T. Hicks, for appellant.
The Attorney General and Pittman & Shaw, for the State.
Upon conviction at the February term the court had the power to "sentence" the defendant either to prison, or, if the county authorities had established a house of correction, to hard labor therein, in addition to the judgment pronounced against him, which imposed the payment of the usual fine and allowance. This conclusion is inevitable if we construe the two sections (Code, §§ 35, 38) [1] relating to the judgment in bastardy cases together, and give effect to both, as a familiar rule of construction requires us to do. Instead of imposing the additional judgment of imprisonment in the county jail, however, the judge, on motion of the solicitor, ordered the sheriff to take the defendant into his custody for failure to comply with the first order, and so left him at the end of the term. During that term the sentence could have been modified, as its execution had not begun. 21 Amer. & Eng. Enc. Law, 1084. But no further steps were taken till the term held in May following. If there had been a house of correction in Vance county, the defendant would nevertheless have been entitled to his discharge upon filing his petition and taking the insolvent debtor's oath, if he had been ordered into custody till fine and costs should be paid. Code §§ 2968-2974; State v. Williams, 97 N.C. 414, 2 S.E. 370; State v. McNeely, 92 N.C. 829. But in our case the defendant, at the instance of the solicitor, "was placed in custody of the sheriff, by whom he was, on failure to comply with the order of the court, committed to the common jail of Vance county, whence he was regularly discharged by order of the clerk on March 13, 1893, under the provisions of Code, §§ 2967 [2]-2972."
We think that the order to the sheriff to take the defendant into his custody was by necessary implication an order to imprison upon failure to pay the fine and costs. The court was presumed to act within the purview of its power, and had no authority to place the defendant in custody, except for the purpose of compelling such payment. The sheriff so construed the order, and we do not think that in acting upon it he exceeded his authority, or made himself amenable for damages for false imprisonment. An order that a defendant be placed in custody of the sheriff is construed, according to the practice prevailing in all the courts, as a commitment till fine and costs are paid, or, with the sanction of the court, secured. When such is the order, the prisoner may be lawfully discharged either upon the payment of fine and costs or upon taking the prescribed oath. State v. Williams and State v. McNeely, supra. When it is admitted, as in this case, that a verbal order was given to the sheriff to take the defendant into custody, after it had been adjudged that he pay fine and costs, and that the sheriff took and held him till, upon petition, he was discharged in accordance with the provisions of the statute, (Code,§§ 2967-2972,) unquestionably it was the right of the prisoner to demand that a record of the order placing him in custody be entered upon the minutes. State v. Harrison, 104, N.C. 728, 10 S.E. 131; State v. Farrar, 104 N.C. 702, 10 S.E. 159. The persons entitled to be so released are specifically mentioned, and among them is "every putative father of a bastard committed for a failure to give bond or to pay any sum of money ordered to be paid for its maintenance." Section 2967 (1.) If there is room to doubt whether the language quoted includes the fine as well as the allowance for the maintenance of the child, the omission in the first is supplied by the provision of the second subsection, which extends the right of discharge to those committed for the "fine and costs of any criminal proceeding." We must concede that a comparison of the cases cited by counsel does not lead to a very clear understanding of what was meant when a bastardy proceeding was declared a civil action, but partaking somewhat of the nature of a criminal action. It is, however, manifest that the defendant may be committed to prison in default in paying the fine as well as the allowance, since the statute (Code, §§ 35, 38) plainly so provides; and it has been expressly held that the judgment for a fine and costs imposed by a court is not deemed a debt within the meaning of article 1, § 16, of the constitution. State v. Cannady, 78 N.C. 539. In that case the conclusion of the court rested upon the position that the constitution did not prohibit the enactment of a law subjecting a prosecutor to imprisonment on failure to pay a judgment for costs. We think that upon the same principle the legislature had the power by the express provisions of a statute to make it the duty of the court to commit the putative father of a bastard on default in satisfying a judgment for fine, allowance, and costs.
Speaking for myself only, however, I must say that I think the act of 1879, by imposing a fine, made the putative father indictable for a criminal misdemeanor, and also liable to imprisonment for nonpayment of the allowance. The manifest intention of the legislature, as evinced in the enactment of sections 35 and 38 of the Code, was that the proceedings against the putative father of a bastard should be "prosecuted by the state," like a "public offense," with a view to insuring the payment of fine and costs, and an allowance appropriated to the support of the child in order to indemnify the county. But while a bastardy proceeding is not prosecuted "for the enforcement or protection of an individual right" or "the redress or prosecution of a wrong," (Code, §§ 126, 127,) it was held by this court in State v. Pate, Busb. 244, that the statute in force before 1879 did not make it a criminal action, because a person "could not be put to answer any criminal charge but by indictment, presentment, or impeachment." Const art. 1, § 12. Though prosecuted in the name of the state, it was declared that the "object of the suit was not to punish the defendant for an act done to the injury of the public, but to indemnify the county against liability for the support of a bastard child." State v. Pate, supra. The statute from 1741 to 1879 contained substantially the same provision, using precisely the same language as to the consequences of a finding against the putative father, viz. that he should "stand charged with the maintenance of the same [the child] as the county court shall order, and give security," etc. Act 1741, c. 30, (1 Potter's Revisal, p. 144, § 10;) Hayw. Man. p. 446; Act 1814, cc. 870, 871, (2 Potter's Revisal, p. 304;) 1 Rev. St. c. 12, § 4; Rev. Code, c. 12, § 4; Battle's Revisal, c. 9, § 4. It was because of the marked distinction between a statute of that kind and one that imposed fine or imprisonment as a punishment that Judge Daniel drew the marked distinction between...
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