State v. Giles
| Decision Date | 01 April 1889 |
| Citation | 9 S.E. 433,103 N.C. 391 |
| Parties | STATE v. GILES. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Cumberland county; MERRIMON, Judge.
The voluntary entering on a jury trial, without objection, is sufficient "consent" to bestow jurisdiction, under Act Jan. 28, 1887, c. 37, authorizing the Cumberland superior court to "try by consent of parties any jury cause at said criminal terms."--
F. P Jones, for appellant.
The Attorney General, for the State.
The defendant being accused upon the oath of Mary J. Warren, made before a justice of the peace of Cumberland county, of being the father of a bastard child born of her body, upon a warrant issued by such justice was arrested and brought before him for the purpose of inquiry into the truth of the charge. Upon the trial of the issue of paternity, it was found against him, and from the judgment the defendant appealed to the superior court. At the trial of the issue at March term, 1889, of the superior court of Cumberland, the jury returned a similar verdict, and thereupon it was adjudged "that the defendant pay a fine of ten dollars that he pay all the costs of this case; and that he pay also into court, for the benefit of Mary J. Warren, the sum of fifty dollars,--thirty dollars of which is to be paid in cash, and the balance installments of ten dollars cash each year hereafter until the full amount be paid; and that he give bond in the sum of two hundred dollars, with sufficient sureties, to indemnify the county of Cumberland against the maintenance of the child; and he is ordered into the custody of the sheriff until this order is complied with." From this judgment the defendant appeals, assigning the various errors set out in the transcript of the case on appeal.
1. When the cause was called for trial, the defendant moved to quash the proceedings upon the several grounds: (1) For a variance in the name of the mother, as she is designated in the affidavit and the warrant,--in the first being called Mary K Warren and in the latter Mary Jane Warren; (2) for that the affidavit fails to allege that it is made voluntarily, or that, affiant is a single woman; and (3) for that it also omits to aver that the child is likely to become a county charge, or upon what particular county it may become a charge. Thereupon leave was given to amend in these particulars, which being made, the motion to quash was denied, and the defendant excepted to the rulings both in refusing the motion and in allowing the amendments.
The affidavit and warrant to which the objections apply are not found in the record, and we must therefore accept the statement of what they contain as set out in the specifications of the appellant as correct, and we must also assume that the amendment allowed in the affidavit was with assent of the affiant, and truthful in fact, so that the only question is as to the power of the court to permit amendments that remove the grounds of the appellant's objections. Without considering the consequences of a variation in the middle name, or the letter as an initial representing it, when the rightful Christian and surname are given, in the absence of any evidence or suggestion even that both names do not designate one and the same person, or that either is borne by any one else, the defect, if of any force, is remedied by the permitted correction. The possession of the power of the court to correct such inadvertencies, and to allow much more serious amendments, and even at a later stage in the case, is so well understood and settled in this state in civil actions as not to require of us the production of decided cases. They will be found in Seymour's Digest, under title "Amendment," to which we will only add State v. Smith, ante, 200, (decided at the present term.)
There is no force in the argument that an amendment that removes objections, valid in the form of the affidavit as then existing, must be made before they are taken, and cannot be made afterwards, since it is precisely for such a purpose that the power is conferred, to be exercised in furthering the ends of Justice at the discretion of the judge, in order that such as are trivial, and do not affect the substantial and understood matters in controversy, may be removed. Code, §§ 269, 270.
2. The defendant produced the record of a previous proceeding instituted against him upon the same charge, and dismissed when carried to the superior court, as a bar to this. We have but a fragment of the record of this case, and it is confined to what transpired in the cause after it reached the superior court, none other being sent up. It is very imperfect and inconsistent in itself, even, for it appears therefrom that a jury, whose names are mentioned, was...
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