Welford v. Havard, 22031

• Court: United States State Supreme Court of Mississippi
• Citation: 127 Miss. 88,89 So. 812
• Decision Date: 21 November 1921
• Docket Number: 22031
• Parties: WELFORD v. HAVARD

89 So. 812

127 Miss. 88

WELFORD
v.
HAVARD

No. 22031

Supreme Court of Mississippi

November 21, 1921

1. BASTARD. Trial. Bastardy proceeding being civil, it is not error to instruct for a nine-jury verdict; and that plaintiff may prove case by preponderance of evidence.

The cause of action and procedure provided for in the bastardy statute, chapter 15, Code of 1906, sections 268-283, inclusive (Hemingway's Code, chapter 7, sections 217-232, inclusive), are civil and not criminal in their nature; in its chief purposes and essentials the cause provided for is a civil and not a criminal cause; therefore in such a proceeding it was not error for the court to instruct the jury that they could return a nine-jury verdict, which is authorized alone by chapter 162, Laws of 1916 (Hemingway's Code, section 2214), in "civil suits in the circuit and chancery courts;" nor was it error in the trial court to instruct the jury in such case that plaintiff was only required by law to establish her case by the preponderance [127 Miss. 89] of the evidence, and not by proof beyond a reasonable doubt as in criminal cases.

2. BASTARDS. Profert to jury of illegitimate child may be made.

On the trial of such a case, which involves the parentage of an illegitimate child, it was not error in the trial court to permit profert of the child to the jury to be made.

3. BASTARDS. Minor may be required to support and maintain bastard child.

Minors are not excepted from the provisions of the bastardy statute; the obligation imposed by the statute on the father of the illegitimate child to support and maintain it in order to prevent it from becoming a public charge is not contractual in its nature. It is a police regulation imposing a penalty for the purpose named, and therefore the statute applies to minors as well as adults.

HON. D. M. GRAHAM, Judge.

APPEAL from circuit court of George county, HON. D. M. GRAHAM, Judge.

Bastardy proceeding by Lollie Havard against Ernest Welford. Verdict and judgment for the plaintiff, and defendant appeals. Affirmed.

Affirmed.

E. W. Breland, for appellant.

There is but one way that this case can be affirmed by this court, and that is for it to hold that a suit under the bastardy statute of the state of Mississippi, to-wit, chapter 15 of the Code of 1906, and chapter 7, Hemingway's Code, is an ordinary civil suit and is to be tried as such in all particulars for this is exactly what the court below did do, and as I do not find where this court has ever construed this statute or had put up to it the manner or character of trial under this statute. I take it that this court will be called upon in determining this matter to pass upon this particular point.

We concede that the courts everywhere have held that a defendant is not committed for debt in a bastardy proceeding, but that it is a punishment or penalty inflicted upon him for his wrong inflicted upon the plaintiff and [127 Miss. 90] upon society. The court's attention is especially called to the case of Ex parte Bridgforth, 77 Miss. 418. The court in this case said, among other things, in speaking of our Bastardy statute, "it is in the nature of a penalty, etc., for violating a law and begetting a bastard child."

If then this case is in fact and in truth a quasi-criminal case, or if it is anything other or more than a plain, simple, ordinary every-day civil suit, it is perfectly obvious that we were not accorded a "square" deal in the trial of this matter in the lower court, and were shorn and deprived of our rights and the defendant, appellant here, suffered the consequences thereof.

But we doubt not that this court will hold that under our statute, a bastardy proceeding is in fact and in truth a quasi-criminal matter, and if it does, it naturally follows that the nine-jury verdict given plaintiff in this case in the court below was not only prejudicial to the defendant but so highly erroneous as to entitle the appellant to a reversal. Courts of different states have differed in passing upon this matter and in determining whether the statutes of their respective states were civil, criminal or quasi-criminal. Of course the language and provisions of the statute in different states differ, and hence the difference of opinion rendered by the court. As we have said, ours is one of the states in which this question has not been passed upon by the supreme court. We cite the case of Miller 1. The State, 110 Ala. 69, 20 So. 392, which state has a very similar statute to ours. The court in that case said that bastardy cases are quasi-criminal and sufficiently criminal to authorize accused to prosecute habeas corpus proceedings, also see Ex parte Chalreston, 107 Ala. 688, 18 So. 224.

A number of states have held that bastardy proceedings were quasi-criminal, and we refer the court to the notes covering this matter fully at pages 317-18, vol. 11 of the American and English Annotated cases. The entire matter is there discussed and the holding of each of the several states therein set forth. The very verbiage and provision [127 Miss. 91] of our statute plants it squarely within the ordinary and usual acceptation of a quasi-criminal matter.

Our statute authorizing a nine-jury verdict. Section 2214 of Hemingway's Code, is plain and unambiguous and means what it says, and it says: "In all civil suits in circuit and chancery courts." This court passed upon this statute in the case of Ulmer v. Pistole, 115 Miss. 485, and therein held it was no infringement upon the constitutional right of parties to a civil suit. Emphasis is both; the statute and the holding of the court in this case is put upon the word "civil."

We are not unmindful of the holding of this court in the case of Smith v. Hawkins, 93 Miss. 588, in which Justice WHITFIELD held that provert of the child was proper in cases of this kind as no facts are set out in this case, it cannot be ascertained just what took place in the trial of that cause, and notwithstanding the holding of the court in that case, we contend that it was error of the court below to permit the child in question to remain in the court room over the objection of the defendant, and to permit counsel for appellee to refer to the said child and its favor of the defendant in his closing argument.

In conclusion, permit me to say that it seems perfectly clear that the jury in this case, as is usually true in cases of this kind, were swayed by their sympathy for the plaintiff and not by the proof presented, otherwise the verdict of the jury would have been for the defendant. The facts of this case unquestionably warranted a finding for defendant, and the court should have been moved to do so; ought to have set this verdict aside on the ground that it was contrary to the law in the case....