
    The State vs. Neil Crawford.
    It is not necessary to a conviction of bastardy, where the information is given, not by the mother, but by a third party, that it should appear that the child is likely to become a burden to the district.
    BEFORE G-LOYER, J., AT CHESTEBEIELD, SPRING TERM, 1857.
    Tbis case was beard in tbe Court of Appeals upon a brief, wbicb being commended by tbe Court to tbe bar for imitation, is bere printed in full, and is as follows.
    IN THE SESSIONS — At SPRING TERM, 1857.
    
      Tried before Glover, J. — At Chesterfield.
    
    The State, ) vs. v ■ Neil Crawford. )
    Beport.
    Tbis was an indictment for bastardy, founded upon a pre» sentment of tbe Grand Jury at Spring Term, 1855, in tbe following terms, — “ Tbe Grand Jury present Lucy Arm Smothers, for having a bastard child in this District, and not having as yet sworn it to any person.” Lucy Ann Smothers was examined as a witness for tbe prosecution, and in tbe course of her testimony said that, “ She never would have sworn her child, if she bad not been compelled to do it, that she did not want any one to support her child, she could support it herself.” Her mother was also examined for tbe State. A number of witnesses were introduced for tbe defendant, with a view to discredit tbe testimony of Lucy Ann Smothers, by contradicting her statements, and proving her character bad. The jury, however, rendered a verdict of “Guilty”. The defendant moves in arrest of judgment and for a new trial on the grounds annexed.
    THOMAS W. GLOYEE.
    Ik Arrest of JudgmeNT.
    
      First. — That it appears, from the record, that Lucy Ann Smothers, the mother of the bastard, did not voluntarily give information against the defendant, but was compelled to disclose the paternity of her child, on information of third parties, which information does not state that “ her child is likely to become a burden to the District.”
    
      Second. — That bastardy is not, in the regard of the law, a criminal offence, and proceedings against the putative father, at the instance of persons, other than the mother, are authorized only in cases where the bastard “ is likely to become a burden to the District” — that in order 'to the incep - tion of such proceedings, information, not simply of the birth of the bastard, but expressly, that “ it is likely to become a burden to the District,” is an indispensable pre-requisite. And it appears from the record in this case, that the information, in which this indictment originated, came not from the mother, but from third persons, and does not contain any such allegation.
    Por a New Trial.
    That it was distinctly proved by the witness for the prosecution that the child is not likely to become a burden to the District — that the mother is both able and willing to support it — the allegation of the indictment in this behalf, was by tbis evidence, disproved, and the verdict should have been for the defendant.
    J. A. & W. C. INGLIS, Atty's.for Defendant.
    
    
      JSxtract from the presentment of the Grand Jury, at Spring Term, 1855.
    “ The Grand Jury present Lucy Ann Smothers for having a bastard child in this District, and not as yet having sworn it to any person.”
    BENCH WARRANT.
    
      State of South Carolina, ) Chesterfield District. J
    By their Honors, the Circuit Judges of the said Court.
    TO ALL AND SINGULAR THE SHERIFFS AND CONSTABLES OF THE SAID STATE: — GREETING:
    Whereas, at a Court of General Sessions, held at Chesterfield Court House, on the first Monday in-, in the year of our Lord one thousand eight hundred and fifty-five, the Grand Jury presented Lucy Ann Smothers for having a bastard child and not having Sworn it to any person; whereupon the Court ordered that a Bench Warrant issue to bind over the said Lucy Ann Smothers, to appear at the next Term of this Court to give testimony as to who is the father of the said bastard child. These are therefore, in the name and by the authority of the said State, to command you and each of you forthwith, to take the body of the said Lucy Ann Smothers, and bring her before the Court now sitting together with this warrant, and if the said Court shall be adjourned, that you bring her before one of the Associate Judges of tbe said State, or a Justice of tbe Quorum or of tbe Peace, to find sufficient securities for ber personal appearance at tbe next General Sessions, to' be bolden for Chesterfield District, at Chesterfield Court House on tbe first Monday in October next, (or otherwise to commit ber to tbe common gaol of said District,) to do and receive what tbe said Court, shall then and there consider of ber in this behalf, and not to depart tbe said Court without leave thereof. Herein fail not, as you shall answer tbe contrary at your peril.
    [l. s.] Witness, J.- C. Craig, Esquire, Clerk of tbe Court of Common Pleas, at Chesterfield Court House, tbe twelfth day of March, in tbe year of our- Lord one thousand eight hundred and fifty-five and in tbe seventy-ninth year of tbe Sovereignty and Independence, of tbe United States of America.
    MoIYER, Solicitor.
    
    JAS. C. CRAIG, Clerk.
    
    EXAMINATION OF LUCY ANN SMOTHERS.
    
      State of South Carolina, ) Chesterfield District., j
    Tbe Examination of Lucy Ann Smothers of South Carolina, in tbe District aforesaid, single woman, taken on oath before me, Wm. B. Hancock, Magistrate, this 14th day of May 1855, who saitb that on tbe 28th day of February, 1852, at tbe House of Moses Smothers in tbe District aforesaid, she tbe said Lucy Ann Smothers was delivered of a female bastard child, with blue eyes and dark hair, and that Neil Crawford of tbe District and State aforesaid, did get ber with child of tbe said bastard child. Taken and signed tbe year and day above written, before me.
    ■ WM. B. HANCOCK,
    
      Magistrate. ber LHCYANNm SMOTHERS, mark.
    
      To ANY Lawful Officer.
    
      State of South Carolina, } Chesterfield District, j
    By ¥m, B. Hancock, Magistrate in and for tlie said District.
    Whereas Lucy Ann Smothers, single woman, of the State and District aforesaid, hath by her Examination, taken in writing, upon oath, before me, declared that on the 28th day of February 1852 past, she was delivered of a bastard child, and charged Neil Crawford of the said District, with having gotten her with child of the said bastard child. I do therefore, hereby command you forthwith to apprehend the said Neil Crawford and bring him before me or some other Magistrate of said District, to be dealt with according to law.
    Given under my hand and seal, this the 14th day of May 1855.
    WM. B. HANCOCK, [l. s.]
    INDICTMENT.
    
      The State of South Carolina, ) Chesterfield District. [
    At a Court of Sessions begun to be holden in and for the District of Chesterfield, in the State of South Carolina, at Chesterfield Court House, in the District and State aforesaid, on the first Monday in October, in the year of our Lord one thousand eight hundred and fifty-five. The jurors of and for the District of Chesterfield aforesaid, in the State of South Carolina aforesaid, that is to say:
    Upon their oaths present that Lucy Ann Smothers a free white single woman of Chesterfield District, in the State aforesaid, on the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and fifty-two, at Chesterfield Court-House, in the District and State aforesaid, was delivered of a female child, which by the laws of this State, is a bastard, and that the said child is likely to become a burden to the District aforesaid. And the jurors aforesaid, upon their oaths aforesaid, do further present, that one Neil Crawford is the father of the said child, and has refused to enter into recognizance, with two good and sufficient securities, according to law, for and towards the maintenance of the said child, ' against the form of the Act of the General Assembly of the said State, in such case made and provided, and against the peace and dignity of the same State aforesaid.
    H. McIYEE, Solicitor E. 0.
    
    POINTS MADE AND AUTHOEITIES.
    I. The production of a bastard is not regarded by our present law, as a public wrong in either party, the whole purpose being to protect the public against the expense of its support. It is a part of our Poor Law System.
    
      See A. A. 1889. 11 Statutes 16, Sec. 12. A. A. 1846, lb. 486. A. A. 1795. 5 Statutes 270- — and compare with these, the Old Act, A. A.. 1703. 2 Statutes, 224. State vs. Darby, 7 Rich. '362 — and cases therein cited to be commented on. 3 Also certain terms used in the Act of 1839 and 1847.
    II. Where the information, upon which proceedings in bastardy are founded, is given, not by the mother, but by a third person, — such information must allege that the “ child is likely to become a burden to the District.” Without this allegation there is no authority in the law to take the first step in such proceedings.
    The Acts of 1839 and 1847 contain our whole existing legislation on the subject.
    See The State vs. Derriclc, 1 McMul. 338, that the Act of 1795 is repealed. The proceeding against the putative father, is tbe creature of Statute Law. See 1 JBlacIcst, Com. [458.] lb. [65.]
    III. Tbe authority of tbe Statute should be strictly pursued.
    See Comm's. of the Poor vs. Gains, 1 Tread. Cons. Hep. 459. The State vs. Ciarle, 2 Brev. B. 386. The State vs. Clements, 1 Spears B. 48. The State vs. Foster, 3 McC. 441. The State vs. O'Bannon, 1 Bail. 144.
    IY. Tbe indictment, here, does allege that tbe “ child is likely to become a burden to tbe District," — but tbe information upon which tbe proceeding is founded, does not. If tbe objection to tbe conviction is a valid one — may judgment be arrested therefor ?
    See Waterman's Archbold's Crim. PI. and Pr.,p. 178 — 81, note (2.) McKay & Wilson ads. The State, MSS. Dec. 1813.
    Y. If tbe objection cannot be taken in this form, bow else can it be made available? Not by motion to quash tbe indictment.
    Eor what cause only such motion ydll lie, See Waterman!s Archbold's Crim. PI. and Pr. 102, text and notes.
    
    YI. There was in this case positive disproof of tbe allegation, that tbe “ child was likely to become a burden to tbe District,” — and therefore, tbe only ground upon which tbe law, by its own choice, has any claims against tbe putative father, upon tbe motion of a stranger, failed. Tbe verdict should have been “ Not Guilty."
    
    
      The State vs. McDonald, 2 Me Cord 298, commented on.
    
      Mclver, Solicitor, for tbe State.
   Per Curiam.

In this case we have been struck with tbe perfectness of tbe brief botb in matter and manner, and we take pleasure in commending it to tbe bar for imitation.

But however much we are pleased with tbe brief,, we are still unable to give any relief to tbe defendant. Tbe case of tbe State vs. McDonald, 2 McC. 299, decides tbe point on which tbe appeal rests tbe case: it has been uniformly followed since 1822.

We cannot therefore, (if we doubted, .which we do not,) do otherwise than decide according to it. .

■ Tbe motion is dismissed.

O’Neall, WhitNer, G-lover andMuirao, JJ., concurring.

Motion dismissed.  