State v. . Addington

WaleeR, J., after stating tbe case: This Court in two recent decisions has finally determined tbe nature of this proceeding. It has been adjudged to be civil and not criminal in its nature, and is intended merely for tbe enforcement of a police regulation. State v. Liles, 134 N. C., 735. It being in tbe nature of a civil proceeding, and tbe issue of paternity being tried according to tbe rules of evidence and procedure applicable to sucb a proceeding (State v. Edwards, 110 N. C., 511), a mere finding of tbe issue against tbe defendant, that is, that be is tbe father of tbe child, would not authorize tbe imposition of a fine, which is a pecuniary punishment for a criminal offense, or a contempt (which is g-iiiisi-criminal), imposed by tbe Court upon conviction. State v. Burton, 113 N. C., 655; 13 Am. and Eng. Enc. (2 Ed.), 53. It is true tbe word “fine” does not always mean a pecuniary punishment of an offense inflicted by a court in tbe exercise of criminal jurisdiction. It has other meanings, *686 and may include a forfeiture, or a penalty recoverable by civil action. People v. Nedrow, 122 Ill., 363; Hanscombe v. Russell, 11 Gray (77 Mass.), 373; Railroad Co. v. State, 22 Kan., 1; Black’s Dict., p. 494; 13 Am. and Eng. Enc., supra. Tbe true signification of tbe word when used in a statute must depend somewhat upon tbe context, and tbe meaning should be gathered from tbe intention, if tbe latter can fairly be ascertained from tbe language used. In ordinary legal phraseology, it is said, tbe term “fine” means a sum of money exacted of a person guilty of a misdemeanor, or a crime, tbe amount of which may be fixed by law or left in tbe discretion of tbe Court, while a penalty is a sum of money exacted by way of punishment for doing some act which is prohibited, or omitting to do something which is required to be done. Village of Lancaster v. Richardson, 4 Lansing (N. Y.), 136; 13 Am. and Eng. Enc., supra, and notes. While the words “fine” and “penalty” are often used interchangeably to designate the same thing, we think it will accord more with the true intention of the Legislature if we hold that in the Act' of 1819, ch. 92 (Rev., sec. 259), the word “fine” was used in the sense of punishment for a criminal offense. In the first place, the amount is not fixed or certain, which is the general characteristic of a fine, but not of a penalty, the amount of the latter being certain, though the Legislature might perhaps impose a penalty of uncertain amount. Commissioners v. Harris, 52 N. C., 281; State v. Cainan, 94 N. C., 883; State v. Crenshaw, 94 N. C., 877; State v. Rice, 91 N. C., 421. In the second place, the statute requires that the defendant shall be committed in default of the payment of the fine, and lastly, this Court has so construed the statute in former decisions. State v. Burton, 113 N. C., 655; State v. Cagle, 114 N. C., 835; Myers v. Stafford, ibid,., 231; State v. Wynne, 116 N. C., 981. This being so, the fine cannot be imposed in a proceeding which *687 is not criminal, and upon the verdict of a jury, where tbe issue submitted is tried like those in other civil cases. Otherwise the defendant would be subjected to conviction and punishment as for a criminal offense without the rights and advantages he would have in a trial upon indictment and the plea of not guilty. State v. Liles, 134 N. C., at p. 737. Whether this provision of the statute is void and of no effect for the reasons we have given, or'whether the fine may be imposed upon conviction in an independent prosecution, we need not decide, as that question is not before us. State v. Liles, at p. 741. We only decide that the fine could not be exacted in this proceeding. Nor could the Court require the defendant to do work upon the public roads. The Revisal, sec. 262, authorizes him to be committed to the house of correction. 'Whether or not this provision is constitutional we need not say. There is no house of correction in Buncombe County, as appears by the judgment. The Court could only commit him to the j ail until he performed its order. It has been held by us that the Legislature did not intend to punish an immoral, or unlawful act, but merely to enforce obedience to the just requirement of the law, that the putative father should provide for the support of his offspring, and save the mother and the county harmless. State v. Brown, 46 N. C., 129 ; Ward v. Bell, 52 N. C., 79; State v. Edwards, 110 N. C., 511. ThR question is fully discussed in State v. Morgan, 141 N. C., 726, and the conclusion reached that this part of the judgment is uUwarranted. Whether the defendant can take the insolvent debtor’s oath is also a question that is not presented. The other objections of the defendant are untenable. The death of the child at its birth can make no difference as to the right of its mother to institute the proceeding. The statute expressly authorizes the mother to proceed against *688 the putative father before the child is born, that is, when it is en ventre sa, mere. Revisal, sec. 253 and 254; State v. Crouse, 86 N. C., 617. The Oonrt may continue the proceedings until the birth of the child. Sec. 258. This clearly implies that the proceeding may be commenced during pregnancy. State v. Wynne, 116 N. C., 981. The Judge was right in excluding from the judgment an order for a bond of indemnity, as the count), by reason of the fact that the child was dead when born, was not exposed to any charge for its support or maintenance. But the allowance h> the mother was properly ordered. The statute simply requires that this allowance shall be made without directing how the money shall be spent. This leaves it discretionary with her as to' .how she will apply it. She was compelled to pay for medical attention and medicine for herself, and the burial expenses of the child, all consequent upon the defendant’s unlawful act. Why should he not be made to reimburse her? It appears from the statute that this allowance could be made before her delivery of the child, if there is no continuance of the trial and the proceeding is then prosecuted to judgment. It is intended to secure to her either probable expenses or to reimburse her actual outlay. This eliminates the fine and the alternative sentence of imprisonment in the house of correction with direction that the defendant be worked on the public roads. The allowance will stand, and the defendant may be imprisoned in the county jail until he pays it and the costs, or until he is otherwise discharged according to law. There was error in the judgment of the Court. Modified.