State v. Lang

Decision Date04 March 1910
Citation125 N.W. 558,19 N.D. 679
CourtNorth Dakota Supreme Court

Appeal from District Court, McIntosh county; Allen, J.

Action by the State against Jacob Lang. From an order changing the place of trial, plaintiff appeals.

Reversed and remanded.

Reversed and remanded.

George M. Gannon, State's Attorney, W. S. Lauder and J. H Wishek, for the State.

A bastardy proceeding is sui genesis, partaking of the features of both criminal and civil action. Clark v. State, 60 N.W. 78. In re Lee, 41 Kan. 318, 21 P. 282; Baker v. State, 56 Wis. 568, 14 N.W. 719; Smith v. State, 73 Ala. 11; Holcomb v. People, 79 Ill. 409; Cummings v. Hodgson, 13 Metc. 246; State v. Hunter, 67 Ala. 81; M. J. J. v. J. C B., 47 N.H. 362; Norwood v. State, 45 Md. 68; State v. Robert, 32 N.C. 350; State v Hales, 65 N.C. 244; Allen v. Ford, 11 Vt. 367; Hodge v. Sawyer, 85 Me. 285; 5 Cyc. 652 and note 58 and 59; Commonwealth v. Davidheiser, 20 Pa. Co. Ct. 200; Keller v. Mertens, 55 N.Y.S. 1043.

A. W. Clyde, for respondent.

The nature and object of bastardy proceedings are distinctively civil, not criminal. Ingwaldson v. Skrivseth, 7 N.D. 388, 75 N.W. 772; State v. McKnight, 7 N.D. 444, 75 N.W. 790; In re Walker, 86 N.W. 510; In re Lee, 21 P. 282; State v. Tieman, 32 Wash. 294, 73 P. 375, 98 Am. St. Rep. 854.

The action is local and transitory and comes within the Code of Civil Procedure and defendant was entitled to a change. Smail v. Gilruth, 8 S.D. 287, 66 N.W. 452; 5 Cyc. 652.

OPINION

CARMODY, J.

This proceedings was instituted under the bastardy act of this state, being a chapter 5 of the Code of Criminal Proceduse; and embracing sections 9647-9664, both inclusive, of the Revised Codes of 1905. On the 25th day of August 1908, a complaint in due form and properly verified was filed in the office of P. T. Kretschmar, a justice of the peace of McIntosh county, N.D., in which it was charged in substance that Christina Kramer is a resident of the county of McIntosh, state of North Dakota; that she is an unmarried woman, and is pregnant with a child which, if born alive, may be a bastard, begotten by the defendant, Jacob Lang, on or about the 13th day of March, 1908, at her home in said county and state. And the child so begotten when born will be a charge on the county of McIntosh, N.D. This affidavit concluded with a prayer that a warrant be issued for the arrest of the defendant, Jacob Lang, that he may answer such charge. This affidavit was signed and sworn to by the said Christina Kramer, upon such complaint, and on the 25th day of August, 1905, a warrant for the arrest of said defendant Jacob Lang was duly issued by the said justice of the peace. Upon this warrant the defendant was arrested and taken before the said justice of the peace. On motion of A. W. Clyde, defendant's attorney, he was discharged on the ground that the warrant did not comply with the statute. A second warrant was issued for the arrest of the defendant on the 3d day of September, 1908. Upon this warrant the defendant was arrested and taken before the said justice of the peace, and thereupon entered into an undertaking as provided in section 9650, Rev. Codes 1905, conditioned that he would appear at the next term of the district court of said county, and from term to term until the final disposition of the proceedings, to answer the complaint and abide the judgment and orders of the court therein. The said justice of the peace thereupon made due and proper return to the district court of McIntosh county, N.D., of all proceedings had before him as aforesaid. The action coming duly on to be heard in the said district court on the 30th day of September, 1908, the defendant filed an affidavit setting forth that he is the defendant in the action and "that he is a resident of Emmons county, N.D., and has been a resident of the same for the five years last past, and that he desires the said action to be transferred to said Emmons county. Upon this affidavit and upon all the records and files in the proceeding and on the 2d day of October, 1908, the district court made an order transferring the said action or proceeding from the county of McIntosh, N.D., to the county of Emmons, N.D. To the order of the court thus changing the place of trial the plaintiff duly excepted.

From this order changing the place of trial as aforesaid, the plaintiff, the state of North Dakota, appeals to this court. But one error is assigned, and that is: The court erred in making the order changing the place of trial of this action or proceeding from said county of McIntosh, N.D., to the county of Emmons, N.D. Defendant contends that the act charged is not a crime or public offense, and the nature and object of the proceeding is distinctly civil and not criminal and therefore comes fully within the provisions of the Code of Civil Procedure, and the defendant was entitled to the change. In this he is in error. Under the provisions of chapter 5 of the Code of Criminal Procedure (Rev. Codes 1905), a proceeding under the bastardy act is commenced by filing the complaint and issuing a warrant of arrest commanding the officer to which it is delivered to forthwith arrest the defendant, and, unless he gives an undertaking in a sum (fixed by the magistrate) to be approved by the clerk of the district court of the county where arrested, to bring said defendant before such magistrate, or, in case of the absence or inability of such magistrate to act, before the nearest or most accessible magistrate authorized to act in such county. The officer to whom such warrant is delivered may execute the same in any part of the state by arresting the defendant and taking him before a magistrate as in such warrant directed. Upon the arrest of the defendant, unless he gives an undertaking approved by the clerk of the district court, as hereinbefore stated, the magistrate before whom the defendant is taken, shall require him to execute and give an undertaking in a sum not less than $ 500 and not exceeding $ 1,000, with sufficient sureties, payable to the state of North Dakota, and conditioned that he will appear at the next term of the district court of such county, and from term to term until the final disposition of the proceedings, to answer the complaint and abide the judgment and orders of the court therein; if the defendant fails to execute and give such undertaking, the magistrate shall make an order committing him as in criminal actions. "The warrant when executed, together with any undertaking given by the defendant, shall be returned by the officer making the arrest to the magistrate who issued the warrant or his successor in office, and the magistrate shall transmit any undertaking given by the defendant together with a transcript of his proceedings and all other papers in the case, without delay, to the clerk of the district court of the proper county." If the defendant shall at any time after his arrest pay or secure to be paid to the complainant such sum of money as she may agree in writing to receive in full satisfaction and as shall be approved by the board of county commissioners of the county in which she resides, and shall execute and give an undertaking with sufficient sureties to be approved by such board to the county in which she resides,...

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