State v. Wynne

• Decision Date: 26 February 1895
• Parties: STATE v. WYNNE.
• Court: North Carolina Supreme Court

21 S.E. 35

116 N.C. 981

STATE v. WYNNE.

Supreme Court of North Carolina

February 26, 1895

Appeal from superior court, Franklin county; Coble, Judge.

Walter Wynne, convicted of bastardy, appeals. Affirmed.

The provision that the court, in bastardy proceedings, in addition to a fine, may compel defendant to pay an allowance to the mother, is not unconstitutional, as authorizing imprisonment for debt.

The indictment is, in substance, as follows: "The jurors," etc., "present that Walter Wynne, *** on the 4th of October, 1893, in and upon the body of one Mary Neal, did willfully and unlawfully beget a bastard child she, the said Mary Neal, being then and there an unmarried woman, and the said bastard child, as begotten by said Walter Wynne, having been born alive on the 4th day of July, 1894 still lives, and is likely to become a county charge, and he the said Walter Wynne, then and there refused to provide for the maintenance of said child, against the form of the statute," etc. The defendant's counsel contended that the court did not have jurisdiction of the offense, as will more fully appear from the opinion of the court. Upon the trial the defendant was convicted, and appealed from the judgment pronounced.

N. Y Gulley, for appellant.

The Attorney General, for the State.

AVERY J.

The statute (Code, § 35) by imposing a fine for begetting a bastard child, makes the act a criminal offense. State v. Parsons, 115 N.C. 730, 20 S.E. 511; State v. Burton, 113 N. C., at page 662, 18 S. E., at page 657; Myers v. Stafford, 114 N. C., at page 240, 19 S. E., at page 764. The limiting of the punishment to a fine of $10, ipso facto, confers exclusive original jurisdiction of the criminal offense upon the courts of justices of the peace for 12 months from the time when the offense is committed (Laws 1889, c. 504); but after the lapse of a year the concurrent jurisdiction of superior and criminal courts attaches, under the provisions of Code, § 892. When is the criminal offense complete? It is, clearly, when the child is begotten, because the mother, as soon as she becomes conscious of her pregnancy, is allowed to complain (Code, § 32), and procure the issuing of a warrant, upon which the accused may be arraigned and tried immediately, on being brought before a justice of the peace, unless the justice shall deem it proper to grant him a continuance (Id. § 34). Following the principle announced in State v. Burton, supra, the court said in Myers v. Stafford, supra, that: "The question being now presented in such shape that it is necessary to be decided, we are of the opinion that the begetting of a bastard child *** has become a petty misdemeanor. It was demonstrated in State v. Burton, supra, that a fine can only be imposed for a crime or misdemeanor or a contempt." The charge embodied in the indictment, and sustained by the proof upon which the defendant was found guilty, was that he "on the 4th day of October, in the year of our Lord 1893, *** in and upon the body of one Mary Neal, did willfully and unlawfully beget a bastard child," etc. The indictment was sent, and returned "A true bill," at January term, 1895, of the court,--more than 12 months after the child had been begotten, and the offense had become complete. Construing Code, § 892, with the amendatory act of 1889, prolonging the period for the exercise of exclusive original jurisdiction by the justice from 6 to 12 months, we cannot escape the conclusion that after one year from the perpetration of the petty misdemeanor of begetting a bastard child, that, like all other offenses for which no greater punishment can be imposed than a fine of $50, or imprisonment for one month, becomes cognizable in the superior court, as well as before a justice of the peace, until the prosecution is barred by the lapse of time.

The plea of not guilty necessarily involves the question of paternity, upon which the finding, on the issue raised by it, depends. When, therefore, the defendant is convicted of the criminal offense, the incidental authority to enforce the police regulation, as pointed out in Parsons' and Burton's Cases, supra, is immediately vested in the court that takes cognizance of the misdemeanor. The power of the court to imprison for fine and costs as well as for nonpayment of the allowance, and the relation sustained by the mother of the bastard and of the county commissioners to the judgment, were fully discussed in State v. Parsons, supra. The incidental authority to enforce the police regulation is expressly conferred by statute, and there can be no reasonable doubt about the power of the legislature in the premises. At common law, in addition to the infliction of punishment of fine and imprisonment for a public nuisance, the court might order that the nuisance be abated. 2 Whart. Cr. Law (7th Ed.) § 2377. So that to clothe the court with some incidental power to further provide for the public protection, after making an example of the offender, is to neither transcend the limit of legislative authority, nor to depart from the practice prescribed in other cases.

The learned counsel for the defendant referred on the argument to a warrant, but the record sent up is entirely consistent with the idea that the prosecution had originated in the superior court by the sending of the indictment after that court had concurrent...