State v. . Ostwalt

The following issues were submitted to the jury by the court:

1. "Is the prosecutrix bound by a former acquittal upon a trial before a justice of the peace?" Answer: "No."

2. "Is the defendant the father of the bastard child of the prosecutrix?" Answer: "Yes."

Defendant was convicted, and appealed.

Defendant excepted to the overruling of his plea of former acquittal. In chapter 92, sec. 2, 1879 (The Code, sec. 35), it was provided that "when the issue of paternity shall be found against the putative father, or when he admits the paternity, he shall be fined by the judge or justice not exceeding ten dollars, which shall go to the school fund of the county." In the same section it was provided further that "the court shall make an allowance to the woman, not exceeding the sum of fifty dollars, to be paid in such installments as the judge or justice shall see fit," etc. This provision was first enacted in the chapter of the Laws of 1879, which was passed for the purpose, as appears upon its face, of enlarging the criminal jurisdiction of justices of the peace (under the Constitution, Art. IV, sec. 27) by limiting the punishment so that it could not exceed a fine of fifty dollars or imprisonment for thirty days. After the passage of the act, however, the attention of this Court had never been called to the fact that a fine was imposed by this statute until the argument of the case of S. v. Burton, 113 N.C. 655. The Court agreed to rest the decision in that case upon other grounds, but the (1210) Justice who delivered the opinion of the Court discussed the question and expressed for himself the opinion that the act of 1879 had made bastardy a criminal offense, cognizable originally before a justice of the peace. At the next succeeding term the Court held, in Myers v.Stafford, 114 N.C. 234 (Justice McRae delivering the opinion and JusticeClark dissenting), that section 35 of The Code made bastardy a petty misdemeanor, and consequently that the county commissioners were not liable for damages for putting a defendant convicted of that offense to work on the public roads until the fine and costs should be paid. At the next term the ruling of the Court that the proceeding was a criminal action was affirmed (in S. v. Parsons, 115 N.C. 730), and it was held by an undivided Court that where there was a Verdict of guilty the defendant must be discharged from custody and relieved of all liability as to the fine of $10 and the costs upon remaining in jail for the requisite time and taking the prescribed oath. But it was held in those cases that the allowance of $50, while the making of it was contingent upon a finding that the defendant was the father — as was the imposition of the fine — was still, like the old allowance, imposed under that part of the act passed by the Legislature in the exercise of its power to enact police regulations, but that as the act made the allowance payable to the mother she became, in contemplation of law, a creditor of the defendant, and could, under section 2948 of The Code, suggest fraud and contest the defendant's right to discharge, as an insolvent from its payment.

In S. v. Wynne, 116 N.C. 981, the Court, as now constituted, held, without a dissent, that bastardy was a criminal offense, complete on the begetting of the child, and was within the (1211) exclusive jurisdiction of a justice of the peace for twelve months thereafter.

We are now urged to overrule all of those adjudications, made upon full consideration of the question by two Courts, the majority of the members of which were differently constituted, and declare that the imposition of a pecuniary fine as a punishment for a violation of law does not, ipso facto, create a criminal offense. This persistent effort on the part of counsel to overturn the former rulings of the Court makes it necessary to again adduce the authorities upon which they were founded.

The Constitution of 1868, as amended in 1875 (Article I, section 13, and Article IV, section 27), had authorized the Legislature to provide for the trial of petty misdemeanors without the intervention of a jury, and the boundary line of a justice's jurisdiction should depend upon the punishment prescribed by statute. It must be inferred that, when the Legislature associated bastardy with a number of misdemeanors, the punishment whereof in the same act was reduced so as to make them cognizable before a justice, it was not accidental, but with a purpose to constitute it a criminal offense, that for the first time it was made punishable by a fine of $10. But not only do the circumstances indicate an actual intention on the part of the Legislature to create a criminal intention, but the apt words used,ex vi termini, can be construed to mean nothing else. Was the construction of the act of 1879 in the three recent decisions of this Court erroneous, as it is now contended it was?

It is familiar learning that words in a statute must be construed according to their technical meaning, unless a contrary intent is apparent upon the face of the act. Under this rule, what must be the interpretation of the provision that on the admission that the defendant (1212) is the father, or the finding of the issue of paternity, "he shall be fined by the judge or justice of the peace not exceeding ten dollars, which shall go to the school fund of the county"? "A crime is an act made punishable by law." Broom's P. of Law, sec. 162; 1 Wharton's Cr. Law, sec. 14, and note. "A crime," says Bishop, "is any wrong which the government deems injurious to the public at large and punishes through a judicial proceeding in its own name." 1 Bishop Cr. Law, sec. 32.

Under the Constitution of North Carolina, the death penalty can be inflicted in four cases only, all other capital punishment being forbidden. The Legislature is empowered to prescribe as a punishment for all other criminal offenses either a fine or imprisonment (with or without hard labor), or both.

When an act affecting the public is forbidden by statute, says Bishop, "the doing of it is indictable at common law." S. v. Parker, 91 N.C. 650; 2 Arch. C. L., 2; 2 Hawkins P. C., Ch. 25, sec. 54; 1 Bishop Cr. L., sec. 237. If a crime is a wrong or an act punishable by law, in a proceeding conducted in the name of the State, it would seem that there can be no controversy about the fact that this proceeding, conducted in the name of the State, in order to carry out a police regulation, became a crime when made punishable by law by fine, appropriated to the school fund, as are all other fines imposed on conviction for crime. It seems never before to have been doubted that the Legislature creates a criminal offense whenever it prescribes that a certain act shall be punishable either by fine or imprisonment, or forbids it generally and by implication empowers the courts to impose either fine or imprisonment, as is the case where the law simply declares that a certain act shall be deemed a misdemeanor, without providing how it is to be punished. S. v. Hatch, (1213)116 N.C. 1003; S. v. Hawkins, 77 N.C. 494; 1 Bishop Cr. Law, sec. 940.

"A fine (says Lord Coke, 1 Coke on Lit., 126b) signifieth a pecuniary punishment for an offense or contempt committed, imposed by the judgment of a court." 7 Am. and Eng. Enc., 991. If a fine is either a punishment for a criminal offense or a contempt, there being no pretense that begetting a bastard is a contempt, it must be a criminal offense.

The Scotch definition of a criminal offense, which was founded upon principles identical with the common law, declared an act made punishable by law, either by corporal punishment or pecuniary mulct, to be a crime. McKenzie Cr. Law, 3.

The act of 1791 (Potter's Revisal, p. 14, sec. 10) and all subsequent enactments contain substantially the same provision as is still contained in section 32 of The Code, that the father, upon the finding of the issue of paternity against him, "should stand charged with the maintenance of the child, as the court may order, and shall give bond," etc. Haywood's Manual, p. 446; Laws 1814, ch. 870, 871; 2 Potter's Revisal, p. 304; 1 Revised Stat., ch. 12, sec. 4; Revised Code, ch. 12, sec. 4; Battle's Rev., ch. 9, sec. 4.

The act of 1879, which is embodied in section 35 of The Code, is in direct conflict with the language quoted from section 32, in providing that "the court shall make an allowance to the woman, not exceeding the sum of fifty dollars, to be paid in such installments as the judge or justice shall see fit, and shall give bond," etc., instead of standing chargeable to the county, as to amount as well as date of payment, as the court might determine. Clearly the effect of the passage of the act of 1879 was, until The Code took effect, in 1883, to repeal this portion of the old Revised Code, as compiled in (1214) Battle's Revisal. Either the court had the power to make an unlimited allowance or one limited to $50. It is manifest that the commissioners inadvertently brought forward and the Legislature inadvertently enacted in The Code provisions apparently conflicting. In the same way the later provision of The Code (section 35), in making bastardy a criminal offense, deprives the State of the right of appeal from a verdict of "not guilty." "The pre-existing law and practice, recognized and enforced in numerous adjudications," said the Court in S. v.Powell, 86 N.C. 640, "had settled the principle that when a party, charged with any offense before a tribunal of competent jurisdiction, has been tried and acquitted, the result is final and conclusive, and no appeal is allowed the State to correct any errors committed by the court, and this has been uniformly maintained since the adoptionof the new Constitution, as before. S. v. Jones, 5 N.C. 257; S. v.Taylor, 8 N.C. 462; S. v. Martin, 10 N.C. 381; S. v. Credle,63 N.C. 506; S. v. Philips, 66 N.C. 646; S. v. West, 71 N.C. 263;S. v. Armstrong, 72 N.C. 193. The right of the State to appeal from erroneous rulings in the court below exists only where judgment is given for the defendant upon a demurrer to the bill, or upon a special verdict, or on a motion to quash, or in arrest of judgment. S. v. Lane, 78 N.C. 547;S. v. Swepson, 82 N.C. 541; S. v. Moore, 84 N.C. 724." The reason given by Chief Justice Pearson and Judge Daniel, in S. v.Connor, 19 N.C. 370; and S. v. Pate, 44 N.C. 244, for declaring that the Legislature had no power to make a criminal offense and provide for its trial, without indictment or presentment, ceased when power was given to the Legislature (Constitution, Art. IV, sec. 14) "to provide other means of trial for petty misdemeanors." A (1215) justice's court now has jurisdiction to try misdemeanors, and the Attorney-General frankly conceded that no appeal on the part of the State lies from a finding of a court of competent jurisdiction that a defendant is not guilty. When the Constitution was so altered as to permit the substitution of the justice of the peace, as a trier of the fact, for the jury, as intimated by Chief Justice Smith, in S. v. Powell,supra, the principle was in no way changed. In speaking of the constitutional provisional that no person shall be twice put in jeopardy of life or limb, Bishop (1 C. L., sec. 997) says: "We have seen elsewhere that while so much of a statute as is against the accused is interpreted strictly, the parts in his favor are extended liberally, and the same distinction applies to a written constitution. Therefore the constitutional provision now under consideration should be liberally construed as covering cases within its reason, while not within its words, on which principle, plainly, the courts should, as we have seen they generally do, hold it applicable to misdemeanors, the same as to treason and felony." Again, Bishop says (1 C. L., sec. 1026): "A statute which, by a device of an appeal by the State, undertakes to authorize the retrial of one acquitted on a valid indictment is void."

Granting, then, that the act of 1879 created a criminal offense, the re-enactment of the old provision, in section 32 of The Code, that "from the judgment and finding the affiant (the woman) or the defendant may appeal to the next term of the Superior Court," etc., would be void, if the principle is properly stated by Bishop. It is the duty of courts, however, as far as it can be done without violating a constitutional principle, to reconcile apparent conflicts in two statutes and construe them so as to give effect to both. Winslow v. Morton,ante, 486. It has been held, in S. v. Wynne, supra, that the criminal offense is within the exclusive jurisdiction, of a (1216) justice for twelve months from the time the child is begotten; and if that was true the justice here had jurisdiction, and any statute providing for an appeal would be, pro tanto, void. While the defendant, in conviction, may be committed to a house of correction or to prison, yet when committed to prison or prayed into custody, without further action by the State or the complainant, he will be discharged on taking the required insolvent oath. S. v. Burton and S. v. Wynne, supra;Myers v. Stafford, 113 N.C. 234. In these cases the right of the mother has been held to be an incidental one, growing out of conviction, which was compared to the right to have a nuisance abated in certain instances, and it is difficult to see how we could have gone further, in the face of the prohibition against placing a person twice in jeopardy — subject a defendant to a second trial. The utmost length that this Court has gone, since attention was called to the act of 1879, was when it was conceded that, after conviction (not after acquittal), the mother acquired the rights of a judgment creditor, and, where she showed due diligence in giving notice, could insist upon contesting the right to discharge as an insolvent on the part of the defendant, and might appeal in apt time to vindicate her right. This privilege can be given her, under the statute, without infringing the constitutional rights of the defendant. But the unfortunate bringing forward of the old statute could not annual rights acquired under the later statute, embodied in a subsequent section of The Code. After the passage of the act of 1879, and before the attention of this Court was called to the fact that a fine had been imposed by that act, several cases came before this Court, which were cited in S. v. Burton and have been considered in every subsequent opinion in which this subject has been discussed. It would seem needless to (1217) thresh over such old straw for the fourth time. The fact that the imposition of a fine creates a criminal offense is none the less true because the Court overlooked for a time the fact that it had been done.

For the reasons given, the judgment of the court below is reversed, and the defendant is entitled to be discharged.

Reversed.