State v. Tickle, 1

CourtUnited States State Supreme Court of North Carolina
Citation238 N.C. 206,77 S.E.2d 632
Docket NumberNo. 1,1
PartiesSTATE, v. TICKLE.
Decision Date23 September 1953

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Gerald F. White, Member of Staff, Raleigh, for the State.

William Reid Dalton, Reidsville, for defendant, appellant.

PARKER, Justice.

The defendant in this Court made a motion to dismiss for want of jurisdiction.

For a crime to be prosecuted and judgment given it is necessary that the trial court have jurisdiction of the subject matter and of the person of the defendant. Jurisdiction of the subject matter is derived from the law. State v. Oliver, 186 N.C. 329, 119 S.E. 370; 10 Am.Jur., p. 917.

The defendant came voluntarily into Caswell County, this state, and was arrested for reckless driving, hunting without a license, and then on the warrant in this case. The defendant was present in person during his trial in the Recorder's Court and the Superior Court. Those courts had jurisdiction of the person of the defendant. State v. Oliver, supra; Pettibone v. Nichols, 203 U.S. 192, 27 S.Ct. 111, 51 L.Ed. 148; 22 C.J.S., Criminal Law, § 144.

The bastard was begotten in Virginia, where her mother domiciled in this state, was working. The bastard's father was domiciled in Virginia, where he has always lived. The mother having no money and being unable to work about three and onehalf months before the bastard's birth returned to Caswell County, where she was domiciled, and gave birth to the bastard. Since then the bastard and her mother have lived in Caswell County, where they are domiciled. The court here had jurisdiction over the person of the defendant. Did the court have jurisdiction over the subject matter charged in the indictment?

Our bastardy statute applies whether the child shall have been begotten or born within or without the state, provided the child to be supported is a bona fide resident of this state at the time of the institution of the action for support of the child. G.S. § 49-3.

An act to be punishable as a crime in this state must be an act committed here and against this sovereignty. State v. Cutshall, 110 N.C. 538, 15 S.E. 261, 16 L.R.A. 130; State v. Jones, 227 N.C. 94, 40 S.E.2d 700; Commonwealth v. Lanoue, 326 Mass. 559,95 N.E.2d 925.

But as to some crimes the physical presence of the accused at the place where the crime is committed is not essential to his guilt is well settled. 'The constitutional requirement is that the crime shall be tried in the state and district where committed; not necessarily in the state or district where the party committing it happened to be at the time.' Burton v. U.S., 202 U.S. 344, 26 S.Ct. 688, 701, 50 L.Ed. 1057; State v. Johnson, 212 N.C. 566, at page 570, 194 S.E. 319.

'There may be a constructive presence in a jurisdiction, distinct from a personal presence, by which a crime may be consummated, and a person beyond the limits of a state or country putting in operation a force which produces a result constituting a crime within those limits, is as liable to indictment and punishment, if jurisdiction can be obtained of his person, as if he had been within the limits of the state or country when the crime was committed.' 22 C. J.S., Criminal Law, § 134, page 219, citing numerous cases.

At common law the father of a bastard child is under no legal obligation to support it. 7 Am.jur. p. 673. However, the father of a bastard is under a natural and moral duty to support his bastard. Kimborough v. Davis, 16 N.C. 71; Burton v. Belvin, 142 N.C. 151, 55 S.E. 71; Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490; 10 C.J.S., Bastards, § 18, page 86. Recognizing that the common law rule is not adapted to the public opinion of a modern christian state and that a poor innocent child should not be suffered to famish as a victim of his father's lust, unless supported at the public charge or by charity, statutes in most states impose on the father the legal duty to support his bastard child. 10 C.J.S., Bastards, § 18, page 86. G.S. § 49-2 makes this moral obligation of the father, legal and enforceable, and we see no good reason why our courts should not enforce it in this case, where the father is subject to our jurisdiction. Roy v. Poulin, 105 Me. 411, 74 A. 923.

We have found no case embodying the exact facts of this case, nor have counsel for the state or the defendant in their briefs referred us to any such case.

In Am.Law Inst.Restatement, Conflict of Laws, p. 545, it is stated: 'Bastardy Proceedings at Domicil of Father. A statute of the state of domicil of the father of a minor bastard child will be there applied to compel him to contribute to the support of the child, irrespective of where the mother is domiciled, unless the statute provides otherwise. Comment: a. Rationale. Whether a bastardy statute is criminal or civil in nature, it represents the exercise of the state's police power either to punish misconduct or to impose the onus of supporting a child upon its natural parent to prevent the child becoming a dependent upon society.'

The same work on p. 546 states: 'Bastardy Proceedings at Domicil of Mother. A statute of the state of domicil of the mother of a minor bastard child will be there applied, if a court there obtains jurisdiction over the father, to compel him to contribute to the support of the child unless the statute provides otherwise.'

The above statement of the law is copied almost verbatim in 7 Am.Jur., Bastards, p. 684.

The prosecution in this action is based on our statute. Whether under the Virginia law a father is required or not required to support his bastard child is not involved.

In Hodges v. New England Screw Co., 1 R.I. 312, 356, Chief justice Greene wrote these words which have become classic: 'The law is progressive and expansive, adapting itself to the new relations and interests which are constantly springing up in the progress of society. But this progress must be by analogy to what is already settled.'

Where bastardy statutes do not expressly provied that the proceedings shall be brought by a woman resident within the state, the question has often arisen whether such a statute may be invoked where the father is domiciled in the state, and the mother and child are non-residents. The courts have taken two views of the question. The rule in a majority of jurisdictions is that a non-resident of the state may institute a prosecution under the statute. These decisions are based on the reason that the principal object of such a statute is to convert the moral obligation of the father into a legal duty by compelling him to assist the mother in support of the child. 18 Ann.Cas. 574 note, where numerous cases are cited. 7 Am.Jur., Bastards, Sec. 85 says this seems to be the better view 'the bastardy proceedings being considered transitory in their nature and the father subject to suit in the county of his residence. A sound reason for this view is that if the rule were otherwise, there might be no remedy where the father took care to cross state lines at the proper time or where the complainant and her child were, by force of circumstances, compelled to reside outside the state.' In State v. Etter, 24 S. D. 636, 124 N.W. 957, 140 Am.St.Rep. 801 --a bastardy case--the court said: 'The defendant is a resident of this state. It would be unreasonable to hold that he was not amenable to our laws because from distress the complainant sought shelter in her father's home in another state--the only place for her to go, outside the almshouse.' The minority rule is that a nonresident cannot maintain the action, and the rationale of those cases is that the primary purpose of the statute is to prevent the child becoming a charge upon the public. 18 Ann.Cas. 575, citing cases; 7 Am.Jur., Sec. 85.

In State v. Wellman, 102 Kan. 503, 170 P. 1052, 1056, L.R.A.1918D,949, the defendant was convicted of failing to support his child under the age of 16. The period within which the defendant was charged to have been guilty of such omission extended from November 10, 1916 to February 10, 1917. During that time and until his arrest he was not in Kansas, but was living in Missouri, and his three children with their mother, his divorced wife, in Kansas. Because of his ill treatment his wife left him in Missouri, and went to Kansas. In Feb. 1916, in Kansas, she divorced her husband, and the court awarded her the custody of the children. In affirming the judgment based upon his conviction the court said in speaking of the defendant's legal duty to provide for his children while they were with their mother in Kansas: 'The omission to perform this duty occurred here. The defendant is not being prosecuted for any wrongful behavior which resulted in his wife and children leaving him; such misconduct, if it occurred, could not be a violation of a Kansas statute, but might bring about a condition under which the defendant was under an affirmative obligation to act, and by merely remaining passive might become a violator of our laws. He is under prosecution for his disobedience of the statute which took place between November 10,.1916, and February 10, 1917, by his then neglecting and refusing to provide for the support of his children. If he had sent his wife and children into Kansas, it would hardly be doubted that he became responsible for their care here. If as a result of his wrongdoing they were obliged to leave him and seek refuge elsewhere, the circumstance that they found shelter in a state which undertakes to punish the neglect of parental duty under such circumstances, when they might have chosen one having a different policy in that regard, imposes upon him no hardship of which he has any standing to complain. Their being here was not due to his deliberate choice, but according to the state's theory it was the result of his voluntary misconduct.'

In Osborn v, Harris, 115 Utah 204, 203 P.2d 917, 921, the matter was before the court upon a Writ of Habeas Corpus to...

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