Opinion
(December Term, 1859.)
An issue in bastardy is not a "criminal prosecution," or a "plea of the State," so as to subject a defaulting witness to the fine of $80 prescribed in Rev. Code, ch. 31, sec. 60.
SCIRE FACIAS against a defaulting witness, tried upon the plea of nul tiel record before Shepherd, J., at the last Fall Term of PITT.
P. H. Winston, Jr., and Edward Warren for plaintiff.
Shaw and Fowle for defendant.
The plaintiff, Ward, was charged under the statute as the father of a bastard child, in Pitt County Court, and made up an issue to try the paternity. The defendant, Bell, was summoned as a witness for him, and failed to answer, whereupon he was fined $80, nisi, and upon this. the plaintiff sued out a scire facias. The only question that arose in the court below was as to the nature of proceedings in bastardy: whether it was a criminal suit or plea of the State, so as to subject a defaulting witness to the penalty of $80 prescribed in such cases, or only a civil suit, wherein the witness is only liable to the lighter fine of $40. Upon this the court was of opinion with the defendant, and from this ruling the plaintiff appealed.
The only question presented in this case is whether the issue made up to try the paternity of a bastard child, under sec. 4, ch. 12, Rev. Code, is a "criminal prosecution or plea of the State," so as to subject a witness summoned to attend the trial thereof, and failing to do so, to a forfeiture of $80, as prescribed in ch. 31, sec. 60, Rev. Code, or is it a "civil suit," so as to subject him to the lighter forfeiture of $40, as provided in the same chapter and section.
The counsel for the plaintiff admits that such an issue is not a criminal prosecution, but contends that it is a plea of the State, and not a "civil suit," or a "civil case." The counsel insists that there is a well settled distinction between a criminal prosecution and a plea of the State; for which he has referred us to Hale's Pleas of the Crown, p. 1 of the Premium; Jacob's Law Dictionary; Tit. Pleas of the Crown; 3 Bl. Com., 40. Without inquiring what the alleged distinction is, and whether it is well founded, we consider that it is settled in this State by judicial authority that an issue in bastardy is in every respect a civil suit, case, or proceeding.
The first case in which a question arose as to the nature of proceedings in bastardy was S. v. Carson, 19 N.C. 370, where it was said that "There is some difference of construction by the courts in cases of orders of justices in bastardy and convictions of justices under penal statutes and for petty offenses. Orders of justices in bastardy cases are police regulations, having for their object solely an indemnity of the county from money liabilities. They do not partake of the nature of criminal proceedings. Therefore, every intendment will be made to support the order of justices in bastardy. 3 T. Rep., 496; 3 East, 58." The question arose again in S. v. Pate, 44 N.C. 244, in which the distinction between a criminal and a civil suit is pointed out, and it was decided that an issue in bastardy was a civil suit, so as to entitle the State to challenge four jurors peremptorily, under Revised Statutes, ch. 31, sec. 37, which gave to "each party in all civil suits" such right. (See, also, Rev. Code, ch. 31, sec. 35.) In S. v. Brown, 46 N.C. (81) 129, it was said that it was not the object of the statute upon the subject of bastardy "to punish the father of a bastard child for having begotten it, but the purpose was solely to prevent its support and maintenance from becoming a county charge. The proceedings under the act are not, therefore, criminal in their nature, but are mere police regulations, adopted for the purpose above indicated." The last case upon this subject which has come before the Court is that of the S. v. Thompson, 48 N.C. 365. In that case it was held that the recognizance for his appearance, entered into by defendant and his sureties in a bastardy proceedings, was in the nature of a bail bond in a civil action, and that the defendant had a right, after having been called out, to surrender himself in discharge of his bail at any time before a final judgment against him on the scire facias.
These cases show clearly that the proceedings against the reputed father of a bastard child, instituted under our statute to subject him to its maintenance, are civil and not criminal in their nature, and that they have been so regarded both in their direct and collateral consequences. If they are so considered in relation to the sureties or bail for the appearance of the putative father, and to the jurors who may sit on his trial, we cannot imagine any good reason why they should be taken to be otherwise in relation to the witnesses whom he may have summoned to attend that trial.
PER CURIAM. Affirmed.
Cited: Clements v. Durham, post, 100; S. v. Edwards, 110 N.C. 512; S. v. Ballard, 122 N.C. 1030; S. v. Liles, 134 N.C. 737; S. v. Addington, 143 N.C. 687.
(82)