
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    The State v. John Clark.
    An indictment upon the act of assembly to try the question whether the ' party accused of being the father of an illegitimate child, is so'or not, must charge that such child was born of a white woman; and, therefore, where the indictment only charged that the child was the issue of a single woman, the judgment was arrested.
    Motion in arrest of judgment, or for a new trial. Indictment in York District Court, before Gkoike, J., against the defendant, charging, that Fanny Harris, single woman, was delivered of a male bastard child, and that the defendant is the father of the same child ; that the same child will become a burthen to the district; and that the defendant refused to enter into a recognizance with security, for the maintenance of the said child, contrary to the act.
    At the trial, evideuce was not given to prove that the child would become a burthen to the district; but only that it was probable he would he would become so; nor was any evidence given that the defendant refused to enter into a recognizance, as charged in the in. dictment.
    It was insisted for the defendant, that he ought to be acquitted for defect of proof to support the indictment; but the presiding judge-directed the jury, and the jury found a verdict, contrary to the doctrine relied on for the defendant. Whereupon, this morion was re-fo.ved, which was argued by Mathis, and Branding, for the de-fe; ■:'<nt; 'and Mr. Solicitor Evans, and Hookes, for the State, . Apr:?. 1810.
    Math.i, in support of the motion,
    cited Peake’s Evid. ‘273-5. 3 East.’s Rep. 1 East. 037. 2 Leach, 503, 556. He argued that this being a penal statute, ought to be construed strictly. That a charge in the negative, was a positive charge, and ought to be proved. That the indictment charging that Fanny Harris, single woman, was delivered of a bastard, was a fatal error, the words of the act of assembly of 1795 being, “any white woman.” The act of assembly ought to have been' strictly pursued. That it cannot be presumed the mother is a white woman from the indictment. All the allegations charged in the indictment, any way material to constitute the offence, ought to have been proved.
    
      JE contra, it was insisted, that the only question'to be tried was, whether the defendant was the father of the child. The act of assembly of 1795, enacts that if any white woman be delivered of a bastard child, and shall, after the birth, voluntarily give information that such child will become a burthen to the district, and will declare who the father is, the magistrate, before whom the information is given, shall,issue his warrant to apprehend the putative father, who shall enter into a recognizance, &c. And should the person so' accused refuse to enter into a recognizance, &c. he shall be committed to prison until he shall comply; or, should he deny he is the father, a jury shall be charged to try the question whether he is the father or not. The Court of Sessions or Common Pleas have indifferently cognizance of the matter. It has, however, been regarded' as an offence against good morals, and of public concern ; and, therefore, the question has heretofore been uniformly made by indictment in the Court of Sessions. -But no other question can be properly tried by the jltry, consistently with the intent of the act of assembly, but whether the person accused is or is not the father of the bastard child. If this question be decided against him, then he must give security, or be bound out to servitude. Here, whatever is charged in the indictment not relevant to the question to be tried by the jury, must be rejected as surplusage.
   About the 1st of May,

Waties, J.,

delivered the opinion of the whole court. That the question intended to be tried by the jury was, whether the defendant was the father of a bastard child, begotten on the body of a white woman. The indictment ought to have charged that the mother of the bastard was a white woman. The indictment charges the mother to be a single woman. It may be that she is not white ; she may be an Indian, or mulatto, for any thing that appears to the contrary from the indictment. See 2 Show. ^ 5 T R 623> j_ T_ R 320. 3 Bac. Abr.

Note. My opinion is, that an indictment upon this act ought to state all the proceedings had before the justice of peace, substantially, by way of recital, using the words of the act in the description of the offence; and then charge positively, the defendant to be the father of the said child, which he refuses to acknowledge and provide for, contrary, &c. But in the recital of the proceedings before the justice of peace, it ought to appear that the party accused is within the meaning of the act, strictly; or else the indictment ought to be held ill. See A. A 1795.

In the introductory part of the indictment, which should set forth substantially by way of recital the proceedings before the justice of peace, as inducement to the charge, and by way of description of the offence, it ought to appear that the party accused has offended against the act. If all the facts stated in an indictment may be true, and yet the iuditee may be innocent, the judgment ought to be arrested.

This rule ought to be adhered to, in order that posterity may know what law is derived from the record.

Judgment arrested; but defendant remanded to answer a new indictment.  