Laney v. State , 109 Ala. 34 ( 1895 )

BRICKELL, C. J.

Proceedings in bastardy are statutory, and must originate before a justice of the peace, on the complaint of a single woman that' she is pregnant with or has been delivered of a bastard child, in the county in which the complaint is made, and must accuse a particular person of being the father of such child. The justice must issue a warrant for the arrest of such person, and on his appearance must inquire whether there is á probable cause to believe him guilty. If on such inquiry the justice finds probable cause, the accused is held to an appearance before the Circuit Court, where, if he demands it, an issue is made up, to ascertain whether he is the real father of the child. — Code, §§ 4842-51. The complaint before the justice is not required to be in writing; it may be oral or written. It serves all the purposes intended, if it induces the issue of process for the arrest of the defendant. — Pruitt v. Judge, 16 Ala. 705; Smith v. State, 73 Ala. 11; Austin v. Pickett, 9 Ala. 102. Without any objection to the sufficiency of the affidavit, constituting the complaint, or to the sufficiency of the warrant of arrest, the defendant appeared before the justice, waived an examination, and gave bond for his appearance at the next term of the Circuit Court. The affidavit and the warrant, if scanned with strictness and'particularity, are doubtless wanting in form and substance. But, without regard to their insufficiency, the justice could have proceeded with the examination the statute requires, and have ascertained the essential facts on which his jurisdiction depended. These essential-facts were, that the complainant was a single woman, and had been, in the county of Calhoun, delivered of a bastard, of which she accused the defendant of being the father ; and these facts could have been declared in the j udgment the justice rendered. Voluntarily, the defendant arrested the examination before the justice, giving bond for his. appearance before the Circuit Court, doing that which the justice could have exacted of him, if the examination had proceeded, and the justice had rendered final judgment declaring the existence of probable cause, and of the essential jurisdictional facts. In Smith v. State, supra, it was held that, if the defendant does not, before the justice, raise any objection to the sufficiency of the warrant or affidavit, he will not be heard, to raise it on appeal to the Circuit Court; and for the reason, as was said by the court, the affidavit and warrant were amendable, and, if objection had been made before the justice, their insufficiency could have been cured.

When the cause reaches the Circuit Court, an issue is to be formed, if the defendant demands it, to ascertain whether the defendant is the real father of the child or not. The issue, if he demands it, must be broad enough to comprehend the inquiry, whether the complainant is a single woman-, and whether she was pregnant with or delivered of the child in the county in which the complaint was made. This was expressly decided in Pruitt v. Judge, supra, under the statute pre-existing the Code. And in State v. Woodson, 99 Ala. 201, it was said, the present is a substantial re-enactment of the pre-existing statute. We are not of opinion the Circuit Court erred in overruling the motion to dismiss the proceedings.

The motion to strike from the file the complaint which was filed by the solicitor, and the demurrer to it, but presented in another form an inquiry into the sufficiency of the affidavit and warrant, — an inquiry which had been waived ; and this is also true, of the motion in arrest of judgment.

We do not understand that the proposition, made by the defendant, to. marry the plaintiff, was an offer to compromise, or buy his peace. It was not accompanied with the requirement or condition that the proceedings should be abandoned, and the only objection made to the admission of it as evidence was that it was an offer of compromise.

There was no error in the refusal of the instruction, if the evidence was believed, to find the defendant not guilty. The evidence was not free from conflict; and that instruction cannot be given, except when there is no material conflict in the evidence.

Let the judgment be affirmed.