Opinion
(June Term, 1844.)
1. In proceedings to charge the reputed father of a bastard child, the examination of the mother before the justices of the peace must appear on the face of the proceedings to have been taken within three years from the birth of the child; otherwise, they will be quashed.
2. If the county court, on motion, refuse to quash the proceedings, the party may either appeal or obtain a certiorari from the Superior Court.
3. Where the defect for which it is moved to quash the proceedings may, consistently with the truth, be supplied at the instance of the State, it is competent to allow the necessary amendment.
APPEAL from Settle, J., at Spring Term, 1844, of BURKE.
Attorney General for the State.
No counsel for defendant.
Proceeding to charge the defendant as the father of a bastard child of one Eliza Justis. The examination of the mother, as returned by the magistrates, did not purport to have been taken within three years from the birth of the child, and on that ground the defendant, on the return of the proceedings, moved the county court to quash them. The motion was refused. The defendant then appealed to the Superior Court, where a motion to dismiss the appeal was made and overruled, and it was ordered that the proceedings be quashed. From this decision the (243) Solicitor for the State appealed to the Supreme Court.
The opinion of the Court is, that the judgment of the Superior Court is right. An order of filiation partakes so much of the nature of summary convictions before inferior tribunals as to make it necessary that it should not appear to have been founded on incompetent or insufficient proof. If such defect appear upon the proceedings themselves, the order of filiation founded thereon by the county court would be quashed by the Superior Court upon a certiorari. That is the course of the common law in England, and consequently might be pursued here. An examination is defective which does not appear to have been taken within three years, for that is a requisite prescribed in the statute. It follows that the county court is not bound to make an order of filiation upon such an examination, since in the Superior Court it would be set aside. But the county court may, and ought, at once, to quash the proceedings and leave the party to be proceeded against anew. If that court will do that, the party might submit to an order of filiation in the first instance, and then obtain his certiorari to quash the order. But we think, likewise, a direct appeal from the refusal of the county court to quash is a convenient and proper method of proceeding, and in conformity with our judicial usages. It is a course that has been generally practiced here. It cannot be denied that this is a defect on which the accused may insist, in some form or in some stage of the proceedings. The question, therefore, chiefly concerns the mode and period for doing so. It is most appropriate that it should be so done as not to complicate this with other objections of a different nature, but to put the decision distinctly on the defect in point of legality or sufficiency of the examination on which the order of filiation was made or moved for. Accordingly, the Court held, in S. v. Carson, 19 N.C. 368, that if the accused, (244) after taking an objection to the examination which was erroneously overruled, proceed under the statute to take an issue to the jury, whether he be the father of the child or not, the defect is waived, or, rather, that it might be supplied on the part of the State by other evidence on the trial of the issue. The verdict upon the issue constitutes evidence of the paternity, legally complete. Consequently, the accused is prevented from objecting that if the order had been made before the verdict, or before he had asked for the issue on which the verdict was rendered, it ought to have been quashed as not being sustained by proper proof. The case there was, indeed, fully made out by the testimony of the mother on the trial of the issue, and therefore it was sufficient for the occasion to say that the proceedings were not rendered erroneous by the defect in the original examination, without deciding whether that examination would have been evidence before the jury, and would have been sufficient without calling the mother personally. But it has been since decided, in S. v. Robeson, 24 N.C. 46, that upon the trial of an issue taken by the accused, advantage cannot be taken of the defect that the examination does not state it to have been taken within three years, but that it is, notwithstanding, competent evidence, and, of course, prima facie evidence to the jury, according to the act. This conclusion was considered as resulting from two considerations. One was, that it was necessary, in order to prevent surprise on the trial of the issue. The other, that it deprived the accused of no advantage, inasmuch as, if he chose to rely on the objection, he might have taken it by way of a previous motion to quash, or by declining the issue he would still be entitled to a certiorari to quash. The act did not mean to compel the accused to put his case upon an issue as to the truth of the charge as it might be bound by a jury. This is an additional privilege and security for (245) the accused, leaving it still open for him to ask, in apt time and order, that the proceedings should be quashed for intrinsic defects. If, indeed, the supposed father moves the county court to quash for any defect which may consistently with the truth be supplied at the instance of the State, it is competent to allow the necessary amendment. But here no motion of that sort was made, and there is no ground for supposing that, in point of fact, this examination was taken within three years after the birth of the child. As it stands, the examination is insufficient, and therefore the proceedings were rightly quashed.
PER CURIAM. Affirmed.
Cited: S. v. Ledbetter, post, 246; S. v. Thomas, 27 N.C. 368; S. v. Lee, 29 N.C. 267; S. v. Long, 31 N.C. 490; S. v. Higgins, 72 N.C. 227; S. v. Ingram, 85 N.C. 516.