State ex rel. Washington v. Hunter , 67 Ala. 81 ( 1880 )

SOMEBYILLE, J.-

— This proceeding was commenced before a justice of the peace, on March 9th, 1880, charging the appellee with being the reputed father of a bastard child, under the provisions of Chap. 6, Title I, Part 4, §§ 4071 et seq. of the Code of 1876.

The accused was required to enter into bond to appear for trial in the Circuit Court of Dallas county, and appearing there defended by pleading the statute of limitations of one year.

The complaint of the relator showed that she was delivered of a child on January 12’, 1878, being then and at the time of becoming pregnant, a single or unmarried woman.

A demurrer to the plea was overruled, the proceeding was dismissed on a failure of the defendant to plead over, and this appeal is taken by the State, under the provisions of the statute expressly authorizing it. — Code, § 4093.

The question to be decided is, was the proceeding barred by the statute of limitations of one year ?'

It is insisted by appellant’s counsel that this is a “civil ease,” and, as such, is brought within the operation of the statute of limitations of one year, as prescribed by § 3231 of the Code; and, in support of this view, we are cited to several adjudicated cases, which have so held in construing statutes somewhat resembling our own.

It might be urged with equal force that it was a criminal prosecution, as the several bastardy acts of England were pronounced to be, so that persons exempted from imprisonment on civil process, were held liable to commitment for disobedience of the orders of the Sessions touching the maintenance of the- bastard child, as in Rex v. Bowen, 5 T. R. 156.

It is conducted in the name of the State as plaintiff, and the defendant is styled “the accused.” — Code, § 4092. The process is forthwith, and is called a “warrant,” and a preliminary investigation is had in order to ascertain “if there is probable cause to believe that the accused is guilty of the charge,” and a bond for the appearance of the defendant may be taken as in criminal cases. — §§ 4072, 4076. And this court has pronounced such statutes “penal” in their nature, and required them to be strictly construed. — Judge of County Court v. Kerr, 17 Ala. 328.

On the contrary, either party may appeal, as in civil cases, and a judgment for costs may be rendered against the mother who is complainant (§§ 4091, 4093); the accuser and accused are competent witnesses (§ 4078), and it is not required, as held in Satterwhite v. State, 28 Ala. 65, that the evidence should place the defendant’s guilt beyond a reasonable doubt, before authorizing a conviction.

The sounder and better view, in our opinion, is, that a proceeding under our statute, in a bastardy case, is sui generis, and partakes of the nature of both a criminal prosecution and a civil suit, and may therefore be styled quasi criminal, as was done by the commissioners who digested and codified our statutes, as found embodied in “Part Fourth” of the present Code of 1876, §§ 3976-4003, p. 861.

If, furthermore, such proceedings should be considered purely civil, there could be no legal sentence of the guilty party to imprisonment, as authorized by § 4081 of the Code, for this would be cleanly violative of § 21 of the Declaration of Bights, which provides that “no person shall be imprisoned for debt — Const. (1875), Art. 1, § 21.

This construction, which we see fit to give to our bastardy statutes, is in accordance with the view taken by the Supreme Court of Massachusetts in Hill v. Wells, 6 Pick. 104; and also by the Supreme Court of Arkansas in Jackson v. State, 29 Ark. 62. In the latter case, the court say : “These provisions are for the benefit of the fallen mother and unfortunate child, as well as for the protection of the public, but they are also a punishment of the guilty father.”

We think it equally clear that a proceeding in bastardy is not a misdemeanor, within the meaning of the statutes, so as to be barred within twelve months after the commission of the offense,” under § 4614 of the Code.

A misdemeanor may be defined to be any crime less than a felony, and they are generally punished by fine, or imprisonment, or both. It is an essential characteristic of a misdemeanor, we think, that it should be an indictable offense. Bish. on Cr. Proc. § 624; Code of 1876, § 4094-6.

The word is said formerly “not to have included a multitude of offenses over which magistrates have an exclusive summary jurisdiction, for a brief designation of which our legal nomenclature is at fault.” — 2 Bouv. Law Dict. title Misdemeanor. Penalties recoverable by qui tarn actions are excluded from the definition by the statute. — § 4097.

. We can see good reasons why no statute of limitations was prescribed to bar such proceedings. They are chiefly intended for the public indemnity, and to coerce the putative father to support and maintain the unfortunate child. 2 Kent’s Com. p. 215. The duty of maintenance continues for a period of ten years, which, in no case, we apprehend, is to extend beyond the time of the child’s minority, or legal infancy. We can see no reason why the statute should be so construed as to require such precipitation in the commencement of the proceedings, as, in many instances readily to be imagined, it would defeat the very purpose of the law. Prewit v. Judge of Co. Court, 16 Ala. 705.

We hold, therefore, that a proceeding of this character is not a civil suit, nor is it a criminal prosecution. It is quasi criminal, partaking of the nature of both. There is no statute of limitations prescribed for such a case by statute, unless, in analogy to the doctrine of prescription, it is barred by presumption in a period of twenty years from the birth of the bastard child.— Wilcox v. Fitch, 20 J. 473; Blanchard on Stat. Lim. 2-6; Angell on Lim. § 9-11; Dean v. State, 63 Ala. 153; Code of 1876, § 3236.

The judgment is reversed and the cause remanded.