State v. . McDonald

Hoke, J., after stating the case: It is now established tbat under our statute on tbe subject, Revisal 1905, sec. 8, a prosecution of this character is a civil proceeding to enforce a police regulation. S. v. Addington, 143 N. C., p. 683; S. v. Liles, 134 N. C., p. 735. There was a time, from 1894 to 1904, when tbe Court held, reversing its former ruling on tbe subject, tbat a bastardy proceeding under tbe statute was in tbe nature of a criminal prosecution, a position which provoked vigorous protest from two of the Associate Justices, expressed in a strong dissenting opinion of tbe present Chief Justice, in S. v. Ostwalt, 118 N. C., p. 208, and later, as stated, tbe Court returned to its original construction, bolding tbat tbe prosecution, while possessing some anomalous features, was a civil proceeding. An informing account of tbe debates on these differing views will be found in tbe opinion of tbe Court in S. v. Lisle, supra, tbe case in which tbe Court returned to its original position, a decision which was approved and confirmed in S. v. Addington, supra; and, as tbe statute now stands, this may be taken for accepted law. These cases, too, which uphold tbe view which now prevails, are also to tbe effect tbat where tbe mother, according to tbe provisions of tbe statute, has formally filed her affidavit charging tbe paternity, this, on tbe bearing either before tbe justice’s court or in term, shall have tbe force and effect of changing tbe burden of tbe issue as to tbe paternity of tbe child, and tbat on tbe introduction of tbe affidavit on tbe part of tbe mother, tbe testimony introduced and relevant must be considered and tbe question determined according to this ruling. Undoubtedly, *805 tbe Legislature lias tbe power to give tbis artificial weight to tbe affidavit of tbe prosecutrix. Tbis bas been beld under given conditions even in criminal cases. S. v. Barrett, 138 N. C., p. 630; S. v. Dowdy, 145 N. C., p. 432. In tbis last case tbe Court, speaking to tbe general principle and in reference to tbe former decision, said: “In Barrett’s case we.have beld that tbe Legislature bad tbe constitutional power to change tbe rules of evidence and to declare that certain facts and conditions when shown shall constitute prima facie evidence of guilt, tbe limitation being that tbe facts and conditions should be relevant to- tbe inquiry and tend to prove tbe fact in issue.” And see, on tbis point, S. v. Rogers, 119 N. C., p. 793. Recurring to tbe principal question, tbe section of tbe statute more especially applicable, Revisal, sec. 255, provides in part as follows: “255. Procedure on appeal. Upon tbe trial of tbe issue, whether before tbe justice or at term, tbe examination of tbe woman, taken and- returned, shall be presumptive evidence against tbe person accused, subject to be rebutted by other testimony which may be introduced by tbe defendant, etc.”; and some of tbe decisions upholding tbe construction indicated will be found in S. v. Mitchell, 119 N. C., 784; S. v. Cagle, 114 N. C., 835-839; S. v. Williams, 109 N. C., 846; S. v. Rogers, 79 N. C., 609; S. v. Bennett, 75 N. C., 305. In S. v. Mitchell, Avery, J., delivering tbe opinion, said: “Tbe charge that tbe oath and examination of the mother of tbe bastard child was prima facie evidence of tbe defendant’s guilt was not erroneous. S. v. Rogers, 79 N. C., 609; Tbe Code, sec. 32. Prima facie evidence is that which is received or continued until tbe contrary is shown. Kelly v. Johnson, 6 Peters (U. S.), 622. It is clear from the terms of tbe statute (Code, sec. 32) that tbe word ‘presumptive’ is used there to define evidence that must be received and treated as true ‘till rebutted by other testimony, which may be introduced by tbe defendant,’ and that it is therefore synonymous with prima facie. We see no force in tbe suggestion that there was error in tbe use of one of tbe terms rather than tbe other.” In S. v. Williams, supra, tbe following charge was approved: “In an issue of paternity in a bastardy proceeding tbe written examination of tbe mother is presumptive evidence that de-fendaift is tbe father of tbe child, and when such written examination is introduced by tbe State, as in tbis ease, it devolves upon the defendant, by a preponderance of tbe evidence, to show that be was not tbe father. Upon tbe failure of tbe defendant to so show, by a preponderance of tbe evidence, that *806 be is not tbe father, it is tbe duty of tbe jury to convict. If tbe defendant bas satisfied tbe jury, by a preponderance of tbe evidence, that be is not tbe father of tbe child, then tbe jury should acquit. If, however, tbe oral testimony taken together, both for'tbe prosecution and defendant, left the minds of tbe jury in doubt, then tbe presumption raised by tbe written examination would not be rebutted, and tbe defendant would be guilty.” . In S. v. Rogers, 79 N. C., supra, it was held: “On tbe trial of an issue of bastardy, tbe court below charged tbe jury that 'The written examination of tbe woman was presumptive evidence that tbe defendant was tbe father of tbe child, and that it devolved on him by a preponderance of tbe evidence to show that be was not; and that if, taking all tbe evidence into consideration, fjotb sides were evenly balanced, tbe State was entitled to a verdict’: Held, not to be error”; and substantially tbe same ruling was made in S. v. Bennett, supra. So far as examined, we find nothing in opposition to tbe principle announced in these decisions, except in tbe case of S. v. Rogers, 119 N. C., 795. In that case tbe Court, wrestling with some of tbe perplexities incident to tbe position then entertained, that bastardy proceedings under tbe statute being of a criminal nature, to wit, (1) that the artificial weight given to tbe woman’s affidavit violated defendant’s constitutional right to be confronted with tbe witness; (2) that it trenched upon tbe time-honored principle that guilt in criminal matters could only be established by proof beyond a reasonable doubt: Held, that notwithstanding tbe express provisions of tbe statute to tbe contrary, that when tbe defendant denied tbe paternity and testified contradicting tbe plaintiff, tbe matter then was at large, and defendant’s guilt must be established beyond a reasonable doubt. Tbe Court, as heretofore stated, having abandoned this interpretation of tbe statute and returned to tbe original ruling that tbe proceedings were of a civil nature, it would seem that tbe former construction should prevail, to tbe effect that when tbe affidavit of tbe woman charging paternity on defendant was formally filed and presented, this raised a presumption that tbe defendant was tbe father of tbe child, and tbe burden of rebutting this presumption was on tbe defendant. We are not inadvertent to several of our recent decisions to tbe effect that in ordinary civil issues tbe terms "primS, facie” and “presumptive,” when applicable, have been held to affect tbe burden of proof only and not tbe burden of the issue (see cases collected and referred to in Winslow v. Hardwood Co., 147 N. C., 275) ; but this bastardy proceeding bas been said in *807 frequent cases to be of anomalous nature and we do not think it well to apply such a principle to the construction of this statute and overturn so many repeated and well-considered decisions to the effect that in these cases the affidavit of the woman changes the burden of the issue and places on the defendant the burden of showing the contrary. See, further, S. v. Patton, 27 N. C., 180; S. v. Goode, 32 N. C., 49. We are, therefore, of opinion that defendant’s prayer for instruction was properly overruled, and the exception to the charge as given on the first ground stated was not well taken. Nor can the defendant’s exception on the second ground as stated by him be sustained, that there was error in charging the jury that the presumption of paternity having been raised by the woman’s affidavit, the burden was on the defendant to satisfy the jury to the contrary, the position being that the term “must satisfy” is stronger than the law requires. This proceeding being, as stated, of a civil nature, we have held in several recent cases that the terms “must satisfy” and must “satisfy by the preponderance of the evidence,” are of equivalent import, and certainly the distinction suggested will be.no longer held for reversible error. Fraley v. Fraley, 150 N. C., 504, citing with approval, on this point, the well-considered opinion of Associate Justice Walker in Chaffin v. Manufacturing Co., 135 N. C., 95. We think, however, that the exception to the charge on the third ground noted by defendant must be sustained, to wit, that in meeting the burden placed on defendant by the presumption of law the charge restricts the defendant to the testimony introduced by him. It is accepted doctrine that both in criminal and civil causes the issue must be determined from all the testimony properly admitted which is relevant to the inquiry and whether it comes from plaintiff or defendant. S. v. Hicks, 125 N. C., 636; S. v. Rogers, 79 N. C., 609; and on the facts presented in restricting the defendant to the evidence tending to exculpate introduced by him, there was reversible error which entitled the defendant to a new trial. New trial. BbowN, J., concurs in result.