The defendant pleaded guilty to the charge of being the father of the bastard child of Hattie E. Hunter. The justice of the peace imposed a small fine, and ordered an allowance of $40, to be paid in weekly installments by defendant. Failing to make said payments, the defendant was committed by the justice, on July 24, 1899, to the house of correction for six months. The
county commissioners allowed defendant compensation at $6 per month. On August 28, 1899, defendant filed a petition to be allowed to take the "insolvent debtor's" oath, and to be discharged from imprisonment, under the provisions of The Code, chapter 27, which was refused by the justice, and on appeal, his Honor refused said petition, and remanded the petitioner to serve out the term of the judgment, and defendant appealed to this Court.
The act of 1870, chapter 92, Code 31, conferred exclusive original jurisdiction on justices of the peace to try all proceedings in cases of bastardy, and in case of conviction or confession, imposed a fine not exceeding ten dollars, on the putative father, and authorized an allowance to the mother, not exceeding fifty dollars.
This Court has frequently held that this statute makes the father of a bastard guilty of a criminal offense, that is, a misdemeanor. Myersv. Stafford, 114 N.C. 234; State v. Oswalt, 118 N.C. 1208. Can the defendant be discharged from imprisonment by complying with the provision of the insolvent debtor's act? This is the main question presented. Code, 2967, provides that the following persons may be discharged by complying with this chapter: (1) Every putative father of a bastard committed for a failure to give bond, or to pay any sum of money ordered to be paid for its maintenance. (2) Every person committed for the fine and costs of any criminal prosecution. Code, 2968. "Every such person, having remained in prison for twenty days" may apply by petition, etc., and be discharged on taking (678) the oath prescribed in that chapter. The Code, 3448, authorizes the boards of commissioners and mayors to provide for working on the public highways all persons imprisoned for misdemeanors, etc., in their counties.
State v. Giles, 103 N.C. 391, was a case of bastardy. The judgment was a fine, and an allowance for the woman, and costs. The Court held that the requirement to pay the amounts declared was not a punishment for a criminal offense, but the exercise of a power to enforce obedience to the order of the Court, and that the party might be relieved from the imprisonment, under the insolvent laws, as if committed for fine and costs in a criminal prosecution. State v. Davis, 82 N.C. 610, was for an affray, and the judgment was a fine and costs, and commitment until payment was made. It was held that the defendant, after remaining in jail 20 days, might be discharged, upon taking the insolvent's oath then required, now in The Code, 2954.
State v. Burton, 113 N.C. 655, was well considered. The defendant was found guilty on a charge of bastardy and committed for nonpayment of fine and allowance for the woman. He was discharged by the
clerk, under the provisions of The Code, 2967, 2972. He was subsequently arrested and committed to the house of correction, by the judge of the Superior Court, for failing to pay said amount under The Code, 38. On appeal, it was held, upon several cited cases, that defendant was properly discharged and that the subsequent sentence of the judge was erroneous.
In State v. Oswalt, 118 N.C. 1208, the Court repeated that a bastardy proceeding was a criminal action, and that if defendant was imprisoned thereunder, he, after remaining in jail, or the house of correction, for 20 days, will be discharged on taking the required insolvent's oath. There are other decided cases to the same effect. (679) We are now asked to overrule these several decisions, and State v. Nelson, 119 N.C. 797, is relied on as authority for so doing. On examination, we find that the question now before us, was neither discussed nor decided in that case. This Court feels as ready to correct its own error, when discovered, as that of any other court, and will do so promptly, before the mischief shall become too widespread. We, however, see no reason for overruling the above-named decisions of our predecessors.
The constitutionality of our statutes on the subject of bastardy, under Article IV, section 27, is not presented by the facts in this case, and we will express no opinion on it until it is presented, and it becomes necessary to do so.
This will be certified to the end that the Superior Court proceed according to this opinion.
Reversed.