State v. Rhodes.

to all the cases, except, That they all have domestic government, which they have formed for themselves, suited to their own peculiar conditions, and that those governments are supreme, and from them there is no appeal except in cases of great importance requiring the strong arm of the law, and that to those governments they must submit themselves.

It will be observed that the ground upon which we have put this decision, is not, that the husband has the right to whip his wife much or little; but that we will not interfere with family government in trifling cases. We will no more interfere where the husband whips the wife, than where the wife whips the husband; and yet we would hardly be supposed to hold, that a wife has a right to whip her husband. We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence. Two boys under fourteen years of age fight upon the play-ground, and yet the courts will take no notice of it, not for the reason that boys have the right to fight, but because the interests of society require that they should be left to the more appropriate discipline of the school room and of home. It is not true that boys have a right to fight; nor is it true that a husband has a right to whip his wife. And if he had, it is not easily seen how the thumb is the standard of size for the instrument which he may use, as some of the old authorities have said; and in deference to which was his Honor's charge. A light blow, or many light blows, with a stick larger than the thumb, might produce no injury; but a switch half the size might be so used as to produce death. The standard is the effect produced, and not the manner of producing it, or the instrument used.

Because our opinion is not in unison with the decisions of some of the sister States, or with the philosophy of some very respectable law writers, and could not be in unison with all, because of their contrariety,—a decent respect for

State v. Elam.

the opinions of others has induced us to be very full in stating the reasons for our conclusion. There is no error. Let this be certified, &c.


No error.


In cases of Bastardy the county of the mother's" settlement" and not that of her "domicil" is chargeable with the maintenance of the child, and settlement is gained only by a continuous residence of twelve months. Therefore, where the mother, having lived in Granville county for several years, removed to Franklin two or three months before the birth of her child, with a bona fide intention of changing her domicil, the former and not the latter county had jurisdiction of proceedings to charge the putative father.

(State v. Roberts, 10 Ire., 350, State v. Jenkins, 12 Ire., 121, and Ferrell v. Boykin ante p. 9, cited and approved.

BASTARDY, tried upon a case agreed before Foule J., at the Fall Term 1867 of the Superior Court of FRANKLIN. The proceedings were returned to the County Court, and carried from thence by appeal of the defendant to the Superior Court.

One Arianna Herndon, a single woman (colored), charged the defendant, a colored man, with being the father of a child of which she was delivered in March 1867 in the county of Franklin. She had resided continuously in Granville county for ten or twelve years before January or February 1867, when she removed to Franklin, with a bona fide intention of residing permanently in that county. The defendant resided in Granville where it is admitted that the child was begotten..

State v. Elam.

It was agreed that if the court should be of opinion that the court of Franklin county had jurisdiction of the proceedings, a verdict should be entered for the State; if otherwise the proceedings should be quashed. His Honor directed a verdict to be entered in favor of the State, and gave judgment accordingly. Whereupon the defendant appealed to this court.

Edwards, for the appellant.

The judge ought to have quashed the proceedings, upon the ground that the county of Franklin had no jurisdiction of the case. See Rev. Code, ch. 86. s. 12, par. 1, 4, 5. Also the case of S. v. Roberts, 10 Ire., 350; Ferrell v. Boykin, ante p. 9.

Atto. Gen. for the State.

PEARSON C. J. The Revised Code (ch. 12) provides in general terms for proceeding against the putative father in the county where the child is born, to compel him to give bond for the maintenance of the child so as to indemnify the county against the charge of its mainte


In most cases the child is born in the county where the mother has her settlement, and there is no difficulty in regard to the county in which the proceeding should be instituted.

But sometimes, as in our case, the child is born in one county, and the settlement of the mother is in another county, which makes it necessary to put a construction on the statute, in order to see to which of the two counties the jurisdiction belongs. Indeed, the question might be still further complicated if we suppose Granville to be the county of settlement, Franklin the county of domicil, and that the mother while on a visit to Wake is delivered of the child.

State v. Elam,

Here Wake has the honor of its nativity, and construction must be resorted to in order to arrive at the meaning as to which of the three counties has jurisdiction.

Upon the question of construction it will be seen that the general police regulations on the subject of paupers are contained in the statute-Revised Code, ch. 86, "Poor"-and that the statute under consideration, and the statute Revised Code, ch. 5 "Apprentices," are supplements to the "Poor" act, and intended to carry out its provisions in regard to children who are paupers. So the three statutes make one sys

tem, and are to be construed together.

The "Poor" act imposes upon every county the burthen of " supporting all persons having a settlement in it, who are paupers, or who may become paupers. It provides that no one shall gain a settlement in a county unless by continuous residence for one year; and authorizes the county into which a pauper, or one who is likely to become chargeable has come, to have him sent back to the county where he has a settlement, at any time within the year; and it declares that illegitimate children shall follow and have the settlement of their mother at the time of their birth, if she then has any settlement in the State; and that neither legitimate nor illegitimate children shall gain a settlement by birth in the county in which they may be born, if neither of their parents had any settlement therein.

In other words, the liability of the county for the maintenance of a bastard child is fixed not by its birth but by the settlement of its mother at the time of its birth.

The object of the bastardy act is to compel the putative father to indemnify the county chargeable with the maintenance of the child-that is the county where the mother has a settlement at the time of its birth. It follows that where a bastard child happens to be born in a county not

State v. Elam.

chargeable with its maintenance, the words, "the county where such child shall be born," must give way and be construed to mean the county chargeable with its maintenance; otherwise we "stick in the bark" and have the absurdity of a county not chargeable taking a bond for its indemnity, while the county that is chargeable is left without relief.

Suppose a woman who has her domicil and also settlement in the county of Granville, goes on a visit into the county of Franklin, and while there is delivered of a bastard child, and then takes her child and goes back home; no one will say that Franklin has jurisdiction, although the child was born in that county, for that county needs no indemnity; and every one will say that Granville is the proper county to institute the proceeding, for that is the county chargeable, and consequently, that is the county authorized to require indemnity. So, as was the case in State v. Roberts, 10 Ire., 350, if a woman having a domicil and settlement in the county of Brunswick, goes into the county of New Hanover, on purpose to be delivered there, and then goes back to Brunswick, the latter county has jurisdiction, because it is the county chargeable with the maintenance of the child, and New Hanover has no concern in it although the child be born in that county.

It is true Judge Nash in his opinion lays stress on the fact that the woman went into the county of New Hanover, mala fide, on purpose to be delivered, and then went back. To prevent misapprehension Judge Ruffin also filed an opinion in which the decision is distinctly put on the ground that the substance of the provision is to indemnify the county legally chargeable with the maintenance of the child. That case is followed by State v. Jenkins, 12 Ire., 121. The child was born in the county of Richmond, where the mother had her domicil and settlement; she then with her child removed to the county of Montgomery, where she resided more

« ElőzőTovább »