Welford v. Havard , 127 Miss. 88 ( 1921 )

Aitderson J.,

delivered the opinion of the court.

This is a bastardy proceeding by the mother of an illegitimate child, the appellee, against the alleged father, the appellant. There was a verdict and judgment in the court below, against the appellant in the sum of eighteen hundred dollars, which he was required to pay in monthly installments for a period of fifteen years for the support of the child; and the judgment as provided by the statute directed that appellant give security J or the payment of said sum and in default thereof he be committed to jail and there held until such bond should be given. From that judgment the appellant prosecutes an appeal.

The trial court proceeded with the cause as if it were a civil and not a criminal cause, and at the request of the appellee instructed the jury that under the law if they found for appellee, they were authorized to return a nine-jury verdict. And also at the request of the appel-lee, the court instructed the jury that they should return a verdict for the appellee if satisfied of the guilt of the appellant by a preponderance of the evidence; the giving of which instructions is assigned as error. During tbe trial the court below, oyer the objection of the appellant, permitted the appellee to make profert of the child to the 'jury. The action of the court is assigned as error. The evidence showed that the appellant at the time of the rendition of the judgment in the trial court was a minor. It is contended on behalf of the appellant that such judgment could not under the law be rendered against a minor, and therefore the action of the court in that respect was erroneous.

The giving of the nine-jury verdict instruction and the instruction that informed the jury that they could return a verdict for the appellee on the mere preponderance of the evidence involves the consideration of one question, and that is, whether or not bastardy proceedings under chapter 15, Code of 1906, sections 268 to 283, inclusive, Hemingway’s Code, chapter 7, sections 217 to 232, inclusive, is a civil or a criminal cause. The nine-jury verdict statute, chapter 162, Laws of 1916, Hemingway’s Code, section 2214, provides that in the trial of all “civil suits in the circuit or chancery courts of this state” nine or more jurors may agree on a verdict; and that either party may request an instruction to that effect, and it shall be the duty of the judge to give it.

If this proceeding therefore, is a criminal and not a civil cause, clearly the giving of the nine-jury verdict instruction was error. And it is also true that if this is a criminal and not a civil cause, the giving of the instruction that the jury might return a verdict on the mere preponderance of the evidence was error, because it is universally heed that in a criminal case the evidence must show the guilt of the defendant beyond a reasonable doubt.

In some of its aspects our bastardy statute partakes of the nature of a criminal proceeding; in others, of the nature of a civil proceeding. The features of the statute which partake of a criminal nature are that the first process served in the cause is a warrant upon which the accused is arrested and the statute authorizes the justice of the peace before whom the initial proceeding is begun, if justified by the evidence, to bind tbe accused in bond with sureties in the sum of not les.j ihm five hundred dollars to appear at the nest term of the circuit court to answer the complaint of the plaintiff. And it is provided' that the circuit court may compel the appearance of the defendant and enforce such bond so required by the justice of the peace, or require the execution by the accused of an appearance bond, if none has been given, and that upon trial in the circuit court if the jury shall return a verdict for the plaintiff they may direct that the same be paid annually or otherwise for a period not exceeding eighteen years, and the court shall render judgment accordingly; that the board of supervisors of the county under certain conditions are authorized to institute proceedings, and the court shall in such case direct in the judgment that the defendant give security for its payment, and in default thereof, be committed to jail and dealt with as convicts of misdemeanors until the bond and security shall be given. And a like judgment is authorized in th'e discretion of the court, where the proceeding is prosecuted either by the mother or child; and that the circuit court or judge thereof in vacation may order the father to jail for a failure to comply with the requirement of the judgment.

On the other hand, the features of the statute which are civil in their nature are as follows: The suit is not in the name of the state, but in the name of the mother of the child, and under certain conditions named in the statute, by the board of supervisors. The initial proceeding is before a justice of the peace on a mere informal complaint, and when the case reaches the circuit court the plaintiff is required on the first day of the court, or within such time as the court may allow, to file a declaration, and the defendant is required to plead thereto as in other cases; and the statute provides that an issue shall be made up' and tried, and that the jury may assess the damages and direct how the judgment shall be paid, and judgment shall be entered accordingly, which is required to be enrolled by the clerk of the court, and thereupon becomes a lien on the property of tbe defendant, and that execution may be issued on such judgment as in other cases.

By the' great weight of authority, bastardy proceedings are civil proceedings and are governed by the rules of procedure applicable in such cases. It is true that a small number of courts have held that such proceedings are criminal instead of civil and are governed by the rules obtaining in criminal cases. 7 Corpus Juris, section 57.

Also by the great weight of authority the parentage of the child in question may be proved by a preponderance of the evidence; proof beyond a reasonable doubt as in criminal cases not being required. 7 Corpus Juris, section 128. The cases bearing on these questions will be found collated in the notes to the two references above to Corpus Juris.

In the case of Grenada Lbr. Co. v. State, 98 Miss. 536, 54 So. 8, which was a suit by the state to recover penalties for breach of the anti-trust laws of this state, one question involved was whether it was a criminal or civil cause. The court held, notwithstanding the penalty denounced by the anti-trust laws was for the purpose of punishing an offense against public justice, that was a civil and not a criminal cause. The definition given of a “civil cause” in that case was that the term “civil cause” was intended to comprehend every conceivable cause of action whether legal or equitable, except such as are criminal in the usual sense; that is, where the judgment against the defendant may be fine, or imprisonment, or both, and in case of fine alone, imprisonment until payment. Applying this test to the statute in question, in the opinion of the court bastardy proceeding is a civil and not a criminal cause. The verdict of the jury and the judgment of the court are civil in their nature. The judgment is required to' be enrolled and is- a lien, and execution may issue on it. The judgment imposes no fine on the defendant, nor can he be imprisoned, except for disobedience of the judgment. The power to imprison given by the statute is in the nature of a power to punish for contempt. Imprisonment may follow, it is true, but that result is only secón lary in purpose. The primary purpose of the statute is to provide for the support of the child, and thereby prevent it from becoming a public charge. In its essentials the cause provided for by the statute is civil and not criminal.

There was no error in the action of the trial court in permitting profert of the child to be made to the jury by the appellee. It was so held in Smith v. Hawkins, 93 Miss. 588, 47 So. 429.

It is contended that the judgment rendered in this case is void because at the time of its rendition the appellant was a minor. The bastardy statute does not except minors. And, furthermore, the liability or obligation on which the judgment in a bastardy proceeding is based has none of the elements of contract. As held in Ex parte Bridgeforth, 77 Miss. 418, 27 So. 622, 78 Am. St. Rep. 532, the basis of the judgment is not a debt due by the defendant to the mother; the proceeding is a police regulation by which the father of the illegitimate child may be required to support his child and protect the public against being charged with its care and support. The judgment is in the nature of a penalty imposed on the father for the purpose of forcing him to make provision for his unfortunate child and is in no sense a debt.

Affirmed