State v. McIntosh, 64 N.C. 607 (1870)

June 1870 · Supreme Court of North Carolina

64 N.C. 607

THE STATE v. DANIEL R. McINTOSH.

Upon the trial of issues in proceedings for bastardy the defendant is a competent witness.

(State v. Waldrop, 63 N. C. 507; State v. Pate, Bus. 244, cited and approved.)

Special proceedings for basta/rcly, tried before Gan-non, J., at Fall Term 1869 of Yancey Court.

Upon the trial of the issues, the defendant tendered himself as a witness, hut his Honor excluded him, as incompetent. The defendant excepted.

Yerdict, G-uilty; Judgment accordingly, and Appeal by the defendant.

Phillips & Merrimon, for the appellant.

F. S. Busbee, contra.

Dick, J.

A proceeding in bastardy, is a civil action, as distinguished from a criminal action: Const. Art. IY, s. 1.

Under the Code of Civil Procedure, it is a special proceeding, as distinguished from a civil action proper. In such special proceeding a party may be examined as a witness in his own behalf: O. O. P. §§ 342-3; State v. Waldrop, 63 N. C. 507; State v. Pate, Bus. 244.

There was error in the ruling of his Honor, and there must be a venire de novo upon the issues submitted.

Let this be certified.

Per Curiam. Venire de novo..