State v. . Ballard , 122 N.C. 1024 ( 1898 )

CLARK, J., dissents, arguendo, in which MONTGOMERY, J., concurs. This was a proceeding in bastardy begun before a justice of the peace, who held that the defendant was not guilty and was not the father of the bastard child. The State and the prosecutrix appealed from the judgment to the Superior Court, where the appeal was dismissed. In this there was no error, as neither the State nor the prosecutrix is entitled to appeal in a criminal action from a verdict or finding of not guilty. That bastardy proceedings, under the law as it now exists, are criminal in their nature has been repeatedly held by this Court, and we see no reason to disturb its settled ruling. A mere change in the personnel in the members of the Court affords no reason for a change in its interpretation of the law. An individual judge, (1025) even if he might lean otherwise were it still an open question, would hesitate to overrule such repeated adjudications unless forced by the firm conviction that they violate some essential principle of substantial justice, or lead in their consequences to absurd or dangerous results. In the case at bar, no such facts appeal to the conscience or the judgment of the Court. That bastardly proceedings may be civil in their nature, when stripped of all punitive features, and intended solely to provide for the support of the child, we are not disposed to deny; but when the Legislature sees fit to superadd all the legal consequences of a crime, the proceeding itself necessarily becomes criminal. The mere fact that a fine is small in amount, does not affect the principle, as the fine might be enlarged to any degree that did not violate the prohibition of Article 1, section 14, of the Constitution.

Section 38 of The Code, provides that if the defendant fails to pay the fine and allowance, "It shall be competent for the Court to sentence such putative father to the house of correction for such time not exceeding twelve months, as the Court may deem proper." A "sentence" is the judgment of the Court upon conviction for crime, and any proceeding that may end in a sentence is substantially criminal in its nature. It must therefore give to the defendant all the legal and constitutional safeguards thrown around such actions. To say that a man may be fined and sentenced to twelve months imprisonment at hard labor, on a purely civil proceeding, on the assumed ground that it is simply an exercise of the police power of the State, is too dangerous a doctrine to meet our approval. Where would it lead, or rather, where would it stop? If applicable to bastardy, why not equally so to other petty misdemeanors, or even to crimes of a graver nature (1026) and heavier punishment?

The legislature has the power to make bastardy a crime, and as such to provide for its punishment, and this it appears to have done.

Section 35 of The Code provides that the defendant shall be fined, and in default of the payment thereof shall be committed to prison. Under that section the Court is required to make an allowance to the woman; but itshall also punish the crime. Therefore, we cannot accept the suggestion that the fine is merely incidental to the proceeding, and may be eliminated therefrom without interfering with the nature of the action. Neither can we adopt the ingenious suggestion of counsel that the fine, being small, is in the nature of a tax. A tax upon what? All taxes must be levied upon the poll or upon property; or, in the nature of license, upon "trades, professions, franchises and incomes." Constitution, Article V, sections 1 and 2. Its location within any of these provisions is beyond the astutia of the Court.

It is needless to cite authorities, as this question has been so recently considered by this Court in S. v. Ostwalt, 118 N.C. 1208, cited in McDonald v. Morrow, 119 N.C. 666, 675, and S. v. Nelson, ib., 797, 799.

The judgment is affirmed.