Opinion
(Decided 5 December, 1899.)
Bastardy Proceedings — Insolvent Debtor's Act — Code, Ch. 27.
1. Under the Act of 1879, ch. 92, Code, sec. 31, bastardy is a misdemeanor, and exclusive original jurisdiction is conferred on justices of the peace. State v. Oswalt, 118 N.C. 1208.
2. A defendant convicted of bastardy may be discharged from imprisonment by complying with the provisions of the insolvent debtor's act, Code, sec. 2967.
3. Quare de hoc — Are the statutes on the subject of bastardy in accord with Art. IV, sec. 27, of the Constitution?
PETITION of defendant, convicted of bastardy, to be allowed to take the benefit of the insolvent debtor's act, made before the committing justice, who disallowed the petition, and heard, on appeal, (675) before Moore, J., at September Term, 1899, of the Superior Court of WAKE County. The defendant had pleaded guilty, in the justice's court, of the misdemeanor of begetting a bastard child on the body of Hattie E. Hunter. "Whereupon, it was adjudged that the defendant pay into court the sum of $40 as an allowance to Hattie E. Hunter, and to cover the costs of this case, to be paid, $5 this 27th day of June, 1899, and beginning Saturday, July 8, 1899, he pay $1 each week until the full sum of $40 shall be paid, and that he pay a fine of one cent. And in default of the payment of any installment of this judgment, as it becomes due and payable, then the whole amount shall be due and payable, and he shall be committed to the house of correction for such time as will cover such balance due, including costs of capias and jail fees, and the cause is held for further action.
Allowance to Hattie E. Hunter........................... $37.40 J. P. costs — H. H. Hunter........................ 1.30 Constable fee — J. E. Potter...................... 1.30 Fine to use school fund................................. .01 ______ $40.01
"This 24th day of July, 1899, the said Ed. White, having failed in the payment of two weekly installments, it is ordered that an instanter capias issue, and on the 24th day of July, 1899, I issued an instanter capias to J. E. Potter, constable. Capias returned July 25, 1899, and Ed. White, being produced in court, is committed to the house of correction of Wake County, for a term of six months, in accordance with the foregoing judgment.
(676)
Amount due to use Hattie E. Hunter.................. $33.20 J. P. fees — H. H. Roberts.................... .90 Officer — J. E. Potter........................ 1.00 Jail — M. W. Page............................. .90 ______ County allowance to prisoner $6.00 per mo........... $36.00
"And a commitment, accompanied by a copy of the judgment, was transmitted to the sheriff and jailer of Wake County; also, a copy of the same filed with the clerk of the board of county commissioners. And on the 28th day of August, 1899, the said Ed. White, by his attorney, R. N. Simms, Esq., filed with me his petition, under chapter 27 volume 2, of The Code, praying that he be allowed to take the insolvent debtor's oath, and be discharged from his imprisonment.... It is considered and adjudged that the prisoner's petition be denied, and Ed. White is remanded to the custody of the superintendent of the House of Correction. This 11th day of September, 1899.
"H. H. ROBERTS, J. P."
From this judgment, denying his petition, the prisoner appealed to the Superior Court.
Upon the hearing of the appeal, his Honor declined to grant the motion to discharge the defendant, and remanded him to the authorities of Wake County to serve out the judgment imposed by the justice of the peace.
Defendant excepted, and appealed to the Supreme Court.
Douglass Simms, for appellant.
J. C. L. Harris, with the Attorney-General, for the State.
The defendant pleaded guilty to the charge of being the father of the bastard child of Hattie E. Hunter. The justice of the peace imposed a small fine, and ordered an allowance of $40, to be paid in weekly installments by defendant. Failing to make said payments, the defendant was committed by the justice, on July 24, 1899, to the house of correction for six months. The county commissioners allowed defendant compensation at $6 per month. On August 28, 1899, defendant filed a petition to be allowed to take the "insolvent debtor's" oath, and to be discharged from imprisonment, under the provisions of The Code, chapter 27, which was refused by the justice, and on appeal, his Honor refused said petition, and remanded the petitioner to serve out the term of the judgment, and defendant appealed to this Court.
The act of 1870, chapter 92, Code 31, conferred exclusive original jurisdiction on justices of the peace to try all proceedings in cases of bastardy, and in case of conviction or confession, imposed a fine not exceeding ten dollars, on the putative father, and authorized an allowance to the mother, not exceeding fifty dollars.
This Court has frequently held that this statute makes the father of a bastard guilty of a criminal offense, that is, a misdemeanor. Myers v. Stafford, 114 N.C. 234; State v. Oswalt, 118 N.C. 1208. Can the defendant be discharged from imprisonment by complying with the provision of the insolvent debtor's act? This is the main question presented. Code, 2967, provides that the following persons may be discharged by complying with this chapter: (1) Every putative father of a bastard committed for a failure to give bond, or to pay any sum of money ordered to be paid for its maintenance. (2) Every person committed for the fine and costs of any criminal prosecution. Code, 2968. "Every such person, having remained in prison for twenty days" may apply by petition, etc., and be discharged on taking (678) the oath prescribed in that chapter. The Code, 3448, authorizes the boards of commissioners and mayors to provide for working on the public highways all persons imprisoned for misdemeanors, etc., in their counties.
State v. Giles, 103 N.C. 391, was a case of bastardy. The judgment was a fine, and an allowance for the woman, and costs. The Court held that the requirement to pay the amounts declared was not a punishment for a criminal offense, but the exercise of a power to enforce obedience to the order of the Court, and that the party might be relieved from the imprisonment, under the insolvent laws, as if committed for fine and costs in a criminal prosecution. State v. Davis, 82 N.C. 610, was for an affray, and the judgment was a fine and costs, and commitment until payment was made. It was held that the defendant, after remaining in jail 20 days, might be discharged, upon taking the insolvent's oath then required, now in The Code, 2954.
State v. Burton, 113 N.C. 655, was well considered. The defendant was found guilty on a charge of bastardy and committed for nonpayment of fine and allowance for the woman. He was discharged by the clerk, under the provisions of The Code, 2967, 2972. He was subsequently arrested and committed to the house of correction, by the judge of the Superior Court, for failing to pay said amount under The Code, 38. On appeal, it was held, upon several cited cases, that defendant was properly discharged and that the subsequent sentence of the judge was erroneous.
In State v. Oswalt, 118 N.C. 1208, the Court repeated that a bastardy proceeding was a criminal action, and that if defendant was imprisoned thereunder, he, after remaining in jail, or the house of correction, for 20 days, will be discharged on taking the required insolvent's oath. There are other decided cases to the same effect. (679) We are now asked to overrule these several decisions, and State v. Nelson, 119 N.C. 797, is relied on as authority for so doing. On examination, we find that the question now before us, was neither discussed nor decided in that case. This Court feels as ready to correct its own error, when discovered, as that of any other court, and will do so promptly, before the mischief shall become too widespread. We, however, see no reason for overruling the above-named decisions of our predecessors.
The constitutionality of our statutes on the subject of bastardy, under Article IV, section 27, is not presented by the facts in this case, and we will express no opinion on it until it is presented, and it becomes necessary to do so.
This will be certified to the end that the Superior Court proceed according to this opinion.
Reversed.