State v. Thomas, 27 N.C. 366, 5 Ired. 366 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 366, 5 Ired. 366

THE STATE vs. WASHINGTON H. THOMAS.

Where a woman has been examined on oath, under the Bastardy Act, before two justices, and one of them omits to sign the examination, the court, to which the proceedings are returned, may permit the justice then to sign the examination.

The ease of the Stale v. Ledbetter, 4 Ired. 342, cited and approved.

Appeal from the Superior Court of Law of Granville county, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

The defendant was charged on oath, before Peterson Thorp and J, Hester, two of the justices of the peace for Granville County, where all the parties lived, by Martha Day, a single woman, with being the father of her bastard child. Whereupon, a warrant was issued against the defendant, to bring him before the examining magistrates, and upon his appear-anee, he was bound over to the County Court. Upon the return of the papers, a motion was made by the defendant, through his counsel, to quash the proceedings, for the reason, as set forth in the record — “ that the examination of the woman, although appearing on its face, to have been taken before two justices, was signed by one only, the other having/or-gotten to sign it, at the time.” This motion was refused, and the magistrate, who had so neglected his duty, being in court, was, on motion of the officer prosecuting in behalf of the State, then permitted to sign the examination. An issue was made up, in the County Court, and being submitted to a jury, a verdict was returned in favor of the State, and upon judgment being rendered, the defendant appealed to the Superior Court, where the issues were again tried, with a similar result, and the defendant appealed to the Supreme Court.

Attorney General for the State.

No counsel in this court for the defendant.

Nash, J.

No counsel appears here to represent the defendant, and we are not informed, on what ground he expects the aid of this court. The record does not show us, that in the Superior Court any objection was made by the defendant, except as to the fact of his being the father of the child, sworn to him by Martha Day. With this question, we have nothing to do, the jury have decided it, and we cannot disturb their verdict. We have carefully looked through the record, and perceive but one question, presented by it, and that is the permission given to the magistrate, in the court, then to sign the examination, taken before him and the magistrate, whose signature was affixed. Unfortunately for the defendant, if this be the only question upon which he has brought his ease here, the question is no longer an open one. At June Term, 1844, of this court, the very question was presented, in the case the State v. Ledbetter, 4 Ired. 242. The Bastardy Act, as it is termed, requires all examinations, to charge a man with being the father of a bastard child, to be taken within tjiree years after the birth of the child. Rev. Stat. ch. 12, s. 6. In that that case, the examination did not upon its face show the fact. Upon the return of the proceedings to the County Court, a motion was made to quash them for that defect, which was refused. The Supreme Court say, “upon the refusal to quash, the party might submit to an order of fil-iation, and then take the case to the Superior Court by a cer-tiorari. But, we think likewise, a direct appeal from the refusal of the County Court to quash, is a convenient and proper method of proceeding.” An appeal, in that case, was taken to the Superior Court, with the examination still so defective, where the proceedings were quashed. The court in commenting on the case say, “ 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.” That is precisely the case here. The only defect, to which the attention of the County Court was drawn, was the absence of the signature of one of the examining magistrates to the examination. That the amendment allowed was according to the truth, is verified by the record itself, and the court had full power to allow the amendment.

When the case appeared in the Superior Court, the examination was complete, and the verdict of the jury has fixed the defendant as the father of the child.

There is no error in the judgment of the Superior Court, ¿and it must be affirmed.

Pee. Curiam, Ordered to be certified accordingly.