delivered the opinion of the Court:
On the trial below it was proved, that the prosecuting witness was delivered of a bastard child. And she testified that plaintiff in err.or was the father of the child. It does not appear from the bill of exceptions, that any witness stated that the child was born alive. On this evidence the jury found plaintiff in error guilty. And it is assigned for error, that the court below overruled a motion for a new trial. The correctness of that decision, we think, depends upon the question, whether a prosecution for bastardy, is a civil or criminal proceeding.
It has some of th.e forms of each. A capias issues for the apprehension of the putative father, on an affidavit, but the same is true when a capias for a debt issues. The party when arrested is required to give bail for his appearance at the trial, and so of a capias in an action of debt. And in both of these proceedings thus far they resemble prosecutions for crimes and misdemeanors which are bailable. In this prosecution, like bailable criminal offenses, the accused is examined on the preliminary trial, and if the evidence induces a belief of probable guilt, he is required to give bail.
But unlike a criminal prosecution, the mother alone can institute the proceeding. And she may control it by compromise or dismissal, at least until judgment. Coleman v. Freerer, 3 Scam. 379. Unlike a crime or misdemanor, a grand jury is not authorized to find a presentment. Uor is any fine or forfeiture imposed, but simply a judgment payable by installments. And execution is enforced by bond and security for the judgment, or in case of failure to execute it, by imprisonment. And if it was considered a crime the law would have provided for the punishment of the parties, but it only compels the father to sustain his offspring, and protect the community against the burden of its support. However immoral the act, we do not consider the prosecution anything other than civil and not criminal.
If it be civil, then the measure of evidence is different from what it would be if it were criminal. In the former, a mere preponderance is sufficient, whilst in the latter, the evidence must exclude all reasonable doubt of guilt to warrant a conviction. Then, does this evidence preponderate in favor of the guilt of the plaintiff in error? The witness testifies that the child was born on a specified day. And when we apply, as the jury had a right to do, the teachings of observation, they must know that a large majority of births are of living children. This is the general course of nature, and the jury had the right to take it into consideration in weighing the evidence. When added to the evidence, it preponderated in favor of the child being born alive. A different rule may prevail in criminal prosecutions, but we think it legitimate in civil causes of this description. And if the child had not been living at birth or had since died, it only required the asking of a single question of the prosecuting witness to have shown the fact.
The judgment of the court below is affirmed.
Judgment affirmed.