Walker v. State

By the Court.

Warner, J.

delivering the opinion.

[1.] The objection to the indictment by the defendant, is, that that there was no allegation that the Justices of the Peace required of him security for the maintenance and education of the bastard child, until fourteen years of age, and also, for the expense of lying in with such child, boarding, nursing, and maintenance, and no allegation that such requisition was refused by the defendant. By the 26th section of the 10th division of the Penal Code, it is declared, “ If any putative father of a bastard child, or children, shall' refuse, or fail,, to give security for the maintenance and education of such child, or children, when required to do so in terms of the law, such putative father shall be indicted for a misdemeanor, and on conviction of the fact of' being the father of such bastard child or children, and of his refusal, or failure, to give such security, he shall be punished by a fine,” &c. Prince’s Dig. 649. The indictment accuses the defenclantwitli being the father of the bastard child, and that he was required by the Justices of the Peace, to give security for the maintenance and education of said bastard child, in terms of the law, and that he refused to do so.

The offence is complete under the foregoing section of the Penal Code, when it is established that the defendant is the father of the bastard child, and refuses, or fails, to give security for the maintenance and education of such child, when required to do so, in terms of the law. The Code, it will be perceived, is silent as it respects the expense of lying in with such child, boarding, nursing, and maintenance of the mother, while she is confined. Under the Penal Code, if the defendant is the father of the bastard child, and shall refuse, or fail, to give security for the maintenance and education of such child, when required to do so, in terms of the law, he may be indicted and punished. The Act of 1793, is altered by the Penal Code, so far as respects the expense of the lying in of the mother, .boarding, nursing, &c. being alleged in the indictment, and the offence is clearly made out against the defendant, by the Code of 1833, when it appears he is the father of the child, and refuses or fails to give security for the maintenance and education of such child, when required todo so in terms of the law, without alleging he was farther required to give security for the expense of lying-in with such child, boarding, nursing and maintenance of the mother during her confinement.

It is a sufficient answer to this objection raised by the defendant, that the Code of 1833 does not require any such averment, to constitute the offence of bastardy. The offence, as alleged in the indictment, is, in the language of the Code, that the defendant was the father of the bastard child, and refused to gire security for the maintenance and education of the child, when required to do so in terms of the lato. By the 1st section of the 14th division of the Penal Code of this State, it is declared, “Every'indictment or accusation of the grand jury, shall be. sufficiently technical and correct, which states the offence,.in the terms and language of the Code, or so plainly, that the nature of the offence charged, may be easily understood by the jury.” Prince, 658. The demurrer to the sufficiency of the indictment, was properly overruled by the Court below. We will next examine the charge of the Court, to the jury. The Court instructed the jury, that, “If the defendant was informed of the nature and character of the bond.that the Justices of the Peace required, and it was in conformity with the laio, and he refused to give such bond, he is guilty of such refusal in -the law.” The charge of the Court must be understood with reference to the-facts then'before the Court, as exhibited by the record before us. The indictment alleges, the defendant was required to give security for the maintenance and education of the child in terms of the law, which he refused to do. What kind of a bond did the terms of the law require the defendant to give, for the maintenance and education of the child 1 By the Act of 1798, the defendant is to give security for the maintenance and education of the child, until he or she arrives at the age of fourteen years. Prince, 140. One of the Justices, before whom the defendant was brought by the warrant, testified that he read the bastardy law openly and aloud, before the defendant, several times, and that he refused to give bond for the maintenance-of the child, and said he would give bond to appear,at the Superior Court. Whether the Justice required the defendant to give security for the maintenance and education of the child in in terms of the law, was a question of fact for the jury to determine, under the charge of the Court; and the Court very properly submitted to them, what kind of security the Justice did require of the defendant, and they have found, that he required security for the maintenance and education of the child, until the age of fourteen years, for that is such security as the law requires; and the law was read to the defendant several times by the Justice, and he refused to give the security, preferring to give bond for his appearance at the Superior Court, We think the charge ■of the'Court to the jury was right, with reference to the facts proved, and the verdict also.

[2.] On the trial of the cause, the warrant by which the defendant was arrested, and brought before the Justice, was read in evidence, and objected to by the defendant, on the ground, it did not specify in the warrant, that the defendant was required to give security for the maintenance and education of the child, See. By the 1st section of the Act of 1793, any Justice of the Peace is authorised, either of his own knowledge, or on information on oath, of any free white woman, having a bastard child, or being pregnant with one, which it is probable will become chargeable to the county, to issue his warrant, and oblige the offender to be brought before him. to give security to the Inferior Court of the county, for the support and education of such child, until the age of fourteen years, or discover on oath the father of such bastard child; which being done, the said Justice shall, in like manner issue his warrant, to bring before him the person sworn to be the father of such child, who, on refusing to give security for the maintenance and education of such child, until he' or she arrives at the a.ge of fourteen years, &c. shall be bound over to appear at the next Superior Court, &c.

In this case, the woman disclosed on oath, that the defendant was the father of the child. The law enjoined it as a duty on the Justice to issue his warrant, and bring the defendant before him, and when so brought before him, to require the defendant to give security, in terms of the law. The warrant recites, that Mary Ann Wheatley, had charged the defendant with being the father of her bastard child, and directed the proper officer to arrest the defendant, and bring him before the Justice to answer said charge. The objection is, that the warrant does not require the officer to bring the defendant-before the Justice, to give security for the maintenance and education of the child. When the defendant was brought before the Justice, by the warrant, the law pointed out his duty, and it was just as competent for the Justice, under the Statute, when the defendant was brought before him, to require him to give security for the maintenance and education of the child, as if it had been specified in the warrant. The warrant was properly received in evidence, to prove the arrest of the defendant, and that he was regularly brought before the Justice, and the evidence of the Justice establishes the fact, that after he was so arrested and brought before him, he, under the authority of the Statute, required him to give security for the maintenance and education of the child, in terms of the law, which he refused to do.

The legitimate object of the warrant, was to bring the defendant before the Justice, and when so brought before him, to execute the duty enjoined upon him by the law. The warrant shows the arrest of the defendant, on the charge of being the father of Mary Ann Wheatley’s bastard child, and it was properly admitted in evidence to establish that fact, if no other.

Let the judgment of the Court below be affirmed.