State v. Clark

4 S.C.L. 386

• Court: Supreme Court of South Carolina
• Decided: May 15, 1810
• Status: Published

Opinion

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.