State v. Liles
| Decision Date | 19 April 1904 |
| Citation | 47 S.E. 750,134 N.C. 735 |
| Parties | STATE v. LILES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Union County; Bryan, Judge.
Proceeding by the state against Lester Liles for bastardy. From a judgment in favor of the state, defendant appeals. Affirmed.
In a bastardy proceeding the legitimacy or illegitimacy of a child born of a married woman is an issue of fact depending on proof of the impotency or nonaccess of the husband, and this whether the child was begotten or born in wedlock.
Redwine & Stack and Williams & Lemmond, for appellant.
Adams Jerome & Armfield and the Attorney General, for the State.
This is a proceeding in bastardy. The prosecutrix was a married woman at the time of the birth of the child, which was born four or five months after marriage. The court charged the jury that "this is a criminal action, and the offense is completed when the child is begotten." To this the defendant excepted. The object of the proceeding, as stated in Code, § 32, is to require the mother, if she shall refuse to declare the father, to "give bond payable to the state with sufficient surety to keep such child or children from being chargeable to the county," and, if she shall accuse any man with being the father, if he admit the charge, or denying it, shall be found to be the father of such child, he shall give bond with sufficient surety to indemnify the county from charges for the maintenance of such child, with a provision that from the judgment "the affiant, the woman or the defendant, may appeal to the next term of the superior court of the county where the trial is to be had de novo." The law as to proceedings in bastardy first appears in the Laws of North Carolina of 1741, c. 14, § 10 and may be found at page 174 of volume 23, State Records, in which volume the laws still extant from 1666 to 1791 are collected and reprinted. Some slight changes were made in 1799. Chapter 531, § 2, and other statutes mentioned in the heading to section 32 of the present Code (of 1883). The statute is also codified in Rev. St. c. 12, § 1, and Rev Code, c. 12, § 1. Clearly, the object of the statute is in no sense criminal, but is expressed on its face to be a fiscal regulation to compel the mother or (if the father was declared by her, and proved to be such) the father to give sufficient surety "to keep such child from being chargeable to the county" for its maintenance. Accordingly we find that in an unbroken line of decisions down to and including State v. Edwards (1892) 110 N.C. 511, 14 S.E. 741, in which the authorities are collected, and which was a unanimous opinion, it is held that the proceeding, though it has some anomalous features, was civil in its nature, and not even quasi criminal; citing with approval, among other cases, State v. Higgins, 72 N.C. 226, to that effect. Among the long line of cases holding that the proceeding was civil in all essential features are, besides State v. Edwards, supra, the following: State v. Peeples, 108 N.C. 768, 13 S.E. 8; State v. Crouse, 86 N.C. 617; State v. Bryan, 83 N.C. 611; State v. Wilkie, 85 N.C. 513 (); State v. Higgins, 72 N.C. 226; State v. Hickerson, Id. 421; State v. McIntosh, 64 N.C. 607; State v. Waldrop, 63 N.C. 507; Ward v. Bell, 52 N.C. 79; State v. Thompson, 48 N.C. 365; Adams v. Pate, 47 N.C. 14; State v. Brown, 46 N.C. 129; State v. Pate, 44 N.C. 244; State v. Carson, 19 N.C. 368; and ""there are others." All these were unanimous opinions, and the point was presented. In State v. Pate, 44 N.C. 244, Pearson, J., calls attention to the fact that this proceeding was not begun by presentment or indictment, and could not be criminal in its nature. In Myers v. Stafford (1894) 114 N.C. 234, 19 S.E. 764, it was held for the first time, and by a divided court (dissenting opinion, 114 N.C. 689, 19 S.E. 764), that bastardy was a misdemeanor; the dissent calling attention to the fact that, if it was a crime, and not a police regulation, as theretofore held, then the woman must be equally guilty. This case was followed by State v. Ostwalt (1896) 118 N.C. 1208, 24 S.E. 660, 32 L. R. A. 396, and State v. Ballard (1898) 122 N.C. 1024, 29 S.E. 899, both by a divided court, two judges dissenting each time. These cases have not been affirmed since, and, indeed, seem to have been questioned in State v. Pierce, 123 N.C. 748, 31 S.E. 847. The result of these cases, all by a divided court, has been practically to destroy almost entirely the efficacy of the proceeding by requiring proof beyond a reasonable doubt, a disparity of challenges, a denial of appeal by the woman or the state, and of the competency of the woman's affidavit (though all these are expressly given in the statute), and by exacting other incidents of a criminal trial. We feel impelled, as the point is now presented for the first time since State v. Ballard, supra, to review these latter cases, and give some of the reasons why we cannot sustain them as authority. The above three cases were followed by two or three others of like purport, in which the point was not discussed, as it was not deemed necessary to reiterate the dissent. The cases named were put on the ground that the act of 1879, incorporated into the Code, § 35 (not section 32), a provision that, if the issue of paternity shall be found against the father, there should be, in addition to the bond for maintenance and the allowance to the woman, a fine of $10 imposed upon the father for the benefit of the school fund. But this contention overlooked the fact that in the very section 32 there was, and had been since its first enactment in 1741, a provision that, if the woman should not declare the father, she should give the bond to prevent the child from being chargeable on the county, and "shall pay a fine," which the statute of 1799 made "five dollars," at which it still stands. Yet during all these years the proceeding had been held a civil remedy. If the fine of $5 against the woman in the same section did not make the proceeding a criminal action, the fine of $10 laid in a different section upon the man could not have that effect. Furthermore, three opinions by unanimous courts, subsequent to the act of 1879 (), held that this provision did not have the effect to change the proceeding into a criminal action. One of these only ( State v. Crouse, 86 N.C. 617) was called to the attention of the court, and, though that case was in point, the other two by some oversight were not called to the eye of the court in either of the three cases (Myers v. Stafford, State v. Ostwalt, and State v. Ballard) in which the majority of the court held that the action had been changed into one to punish a misdemeanor. Had the other two cases, to same effect as State v. Crouse, been then called to the attention of the court, doubtless they would have been followed. In one of these--State v. Giles, 103 N. C., at page 396, 9 S.E. 435--Smith, C.J., speaking for a unanimous court, says: This was followed in State v. Edwards, 110 N.C. 511, 14 S.E. 741, in which (at page 512, 110 N. C., page 741, 14 S. E.) it is said that, though "a fine is imposed by the statute," the action remains a civil proceeding. Although this case was cited in State v. Ostwalt and State v. Ballard, this direct ruling on the point was overlooked. The true principle applicable is thus stated by Ruffin, J., in State v. Snuggs, 85 N.C. 541 (): "The statute not only creates...
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