Paulk v. State , 52 Ala. 427 ( 1875 )

BRICKELL, C. J.

A proceeding under the statutes to compel a putative father to the support and education of a bastard child, during the helplessness of mere infancy, has some of the characteristics of a civil action and of a criminal prosecution. It is commenced by a complaint on oath, on which a warrant of arrest issues in the name of the State. A preliminary examination is had before a justice of the peace of the county in which the woman is pregnant or delivered of the child, and if sufficient evidence appears, the accused is recognized to appear at the next term of the circuit court. If he fails to enter into the recognizance with sufficient sureties, he is held in custody. Entering into the recognizance and failing to appear in obedience to it, a forfeiture is incurred, and a writ of arrest issues against him, as in criminal cases on indictment. On Ms appearance in the circuit court, an issue is made up to which he and the State are the parties, to ascertain whether he is the real father of the child. If this issue is found against him, judgment is rendered against him for the costs, and he is required to give bond and security payable to the State, conditioned for the payment annually, for the period of ten years, of such sums not exceeding fifty dollars a year, as the court may prescribe, for the support and education of the child. Failing to give the bond, the court renders a judgment against him of necessity, in the name of the State, for such sum as at legal interest will produce the sum he is required to pay yearly, and “ he must also be sentenced to imprisonment for one year, unless in the mean time he execute the bond required, or pay the judgment and costs.” R. C. §§ 4396-4406. The proceeding is certainly penal in its character, if not strictly criminal. On the trial in the circuit court the accuser and accused are alike competent witnesses. It can be commenced only on the complaint of the mother. No indictment or presentment by a grand jury is necessary to support it. 'It abates on the death of the child, and the marriage of the mother and putative father • vacates the proceeding, though it has progressed to final judgment. It is a penal proceeding,- intended to relieve the State from the duty of maintaining the illegitimate child, rather than to inflict punishment for the violation of law. It is founded on the hypothesis, that it is a duty due to society from the putative father to maintain and educate his illegitimate child, and the purpose is to compel performance of this duty. Judge of County Court v. Kerr, 17 Ala. 328; Satter white v. State, 28 Ala. 65.

The constitutional inhibition of imprisonment for debt is not infringed by the imprisonment of the putative father if he fails to execute the bond required of him on conviction. He is imprisoned not for the failure to pay a debt, but for his failure to perform a duty — a duty enforced in the name of the State, for the protection of the State.

On an issue formed in a bastardy proceeding, it is doubtless competent for the defendant to prove that the child bears no likeness or resemblance to him, or that it resembles some other person, who had opportunities of illicit intercourse with the mother. This was not the kind of evidence offered by the appellant. The proposition was to permit a witness to state the bastard child favored the children of another man. It was not proposed to show these children favored their father. A child often resembles only his mother, and has none of the distinguishing features or physical peculiarities of the father. Nor was it offered to show what were the particulars in which the bastard resembled or favored the children of the person named. It was the mere opinion of the witness that the children did bear a resemblance. There is nothing about which the opinions of individuals, differ so widely as personal likeness or resemblance. One discovers it, where another, instead of finding traces of it, finds distinctive marks of opposition. The evidence was too vague and uncertain — too inconclusive in its nature, to have gone to the jury. It could not have exerted any legitimate influence on the verdict they were required to render. In the case of Commonwealth v. Webster (5 Cushing, 302), it was- material for the defendant to show that the person he was charged to have slain was in life after a particular hour of a certain day. Witnesses were introduced who testified they saw him in various places in Boston after that hour. To rebut this evidence, it was proposed to show there was a person about the streets of Boston, at that time, who bore a strong resemblance to the deceased in form, gait, and manner, and had, by persons acquainted with the deceased, been approached and spoken to, for the deceased. The evidence was rejected as too remote and unsatisfactory. This 'evidence seems to us more remote and 'unsatisfactory, and was properly rejected.

The judgment is affirmed.