State v. Pate, 44 N.C. 244, 1 Busb. 244 (1853)

June 1853 · Supreme Court of North Carolina

44 N.C. 244, 1 Busb. 244

STATE (AND SUSANNA ADAMS) vs. BRYAN H. PATE, Jr.

All suits prosecuted in the naide of the State are not necessarily criminal suits/ as distinguished from civil suits — the true test being, that when the proceeding is by indictment, the suit is criminal, and when by action, or other mode, though in the name of the State, it is a civil suit.

Hence, a proceeding in bastardy, being a civil suit, where the defendant made up an issue that he was not the father as charged: — Held, That the State was entitled to four peremptory challenges, (under 37th sec. 31st ch. Revised Statutes.)

(The case of the State v. Floyd, 13 Ire., 382, cited and approved.)

This was a proceeding in bastardy, returned to the Court of Pleas and Quarter Sessions of Wayne county, in which Court the defendant pleaded that he was not the father of the child as charged. From' thence it was carried upon the appeal of the County Solicitor to the Superior Court, where it was tried before Manly, Judge, on the last Spring Circuit.

In selecting a jury, the Solicitor for the State claimed the right of making four peremptory challenges, which was overruled by his Honor. On the trial, in order to repel the presumption raised by the examination of the woman before the magistrate, the defendant offered to prove that she had made concerning the matter contradictory statements. To this the Solicitor objected, upon the ground that the woman must first be called by the defendant. This objection was also overruled by his Honor; and from a verdict and judgment in favor of the defendant, the Solicitor for the State appealed to the Supreme Court.

Attorney General, for the State.

McRae, for the defendant.

PeaRSon, J.

By the Revised Statutes, ch. 31, sec. 3T, “ each party in all civil suits” may challenge peremptorily four jurors. So the question is, are proceedings in bastardy “ civil suits?”

Suits are either civil or criminal. All criminal suits are prosecuted in the name of the State ; but all suits prosecuted in the name of the State are not criminal suits : — an action of debt may be prosecuted in the name of the State. The true test is, when the proceeding is by indictment, it is a criminal suitwhen by action or other mode, although in the name of the State, it is a civil suit, and should be by the clerks put on the civil, as distinguished from the State docket. By the “'Declaration of Rights,” no free man shall be put to answer any criminal charge, but by indictment, presentment, or impeachment. By Rev. Stat., ch. 35, sec. 6, no person can be charged in a criminal proceeding, except upon a bill of indictment. Tested in this way, the present is a “ civil suit,” although prosocuted in the name of the State, and the plaintiff was entitled to four peremptory challenges. The object of the suit is not to punish the defendant for an act done to the injury of the public, but to indemnify the County of Wayne against a liability for the support of a bastard child, of which the defendant is by law the reputed father.

The other question is settled. State v. Floyd, 13 Ire., 382.'

Per Curiam. Judgment reversed, and venire de novo awarded.