State v. Edwards

• Decision Date: 15 March 1892
• Citation: 14 S.E. 741,110 N.C. 511
• Parties: STATE v. EDWARDS.
• Court: North Carolina Supreme Court

14 S.E. 741

110 N.C. 511

STATE v. EDWARDS.

Supreme Court of North Carolina

March 15, 1892

Appeal from superior court, Bladen county; JAMES D. McIVER, Judge.

Wright Edwards was found guilty of bastardy, and appeals. Reversed.

The Attorney General, for the State.

CLARK J.

This was a bastardy proceeding tried before a justice of the peace on 23d of October. From his judgment an appeal was taken and docketed in the superior court, October 26th, being the first day of the term. At that term, when the case was called for trial, the defendant objected that, under rule 24 of the superior court, the case did not stand for trial till the next term. The objection being overruled, the defendant excepted. Trial was had, and, the verdict and judgment being against him, the defendant appealed. Rule 24 for the superior courts is as follows: "Appeals from justices of the peace in civil actions will not be called for trial unless the returns of such appeals have been docketed ten days previous to the term, but appeals docketed less than ten days before the term may be tried by consent of parties." 12 S.E. Rep. xiv. The power of this court to prescribe its own rules is conferred by the constitution and not subject to legislative control. Horton v. Green, 104 N.C. 400 10 S.E. Rep. 470. But the power lodged here to prescribe rules for the lower courts, to being conferred by statute (Code, § 961; Barnes v. Easton, 98 N.C. 116, 3 S.E Rep. 744; Cheek v. Watson, 90 N.C. 302,) is subject to legislative modification. We find, however, no statute in conflict with this rule, and, being authorized by law, it has the force and effect of a statute. The rule is a reasonable regulation that, though under the Code, §§ 565, 880, the appeal stands ordinarily for trial at the first term, it must be docketed 10 days. Sondley v. City of Asheville, 14 S.E. Rep. 514, (at this term.)

It is however, contended that bastardy proceedings do not come under this rule, not being a civil action. It is true that proceedings in bastardy are somewhat anomalous. They begin by a warrant; a capias lies to enforce defendant's appearance, (State v. Green, 71 N.C. 172;) an indictment lies for escape against an officer who permits the escape of one arrested in such proceedings, (State v Ritchie, 107 N.C. 857, 12 S.E. Rep. 251;) the defendant even under the present constitution, may be imprisoned for failure to give the required bond, and pay costs and fine, (Code, § 32; State v. Palin, 63 N.C. 471;) and a fine is imposed by the statute. But, not withstanding these peculiarities, it has always, and uniformly, been held that the proceeding is, in the main, civil in its nature. State v. Peeples, 108 N.C. 768, 13 S.E. Rep. 8. Either party has the right to appeal, (State v. Wilkie, 85 N.C. 513,) and the law of costs as to civil actions applies, (State v. Bryan, 83 N.C. 611.) In State v. Carson, 19 N.C. 368, it is held to be a police regulation, and not a criminal proceedings, and this is cited with approval in State v. Brown, 46 N.C. 129, and State v. Higgins, 72 N.C. 226. The true test between a criminal and a civil proceeding is that in the former the act complained of will support...