State v. Pate

44 N.C. 244

• Court: Supreme Court of North Carolina
• Decided: June 15, 1853
• Status: Published

Opinion

PeaRSon, J.

By the Revised Statutes, ch. 31, sec. 3T, “ each party in all civil suits” may challenge peremptorily four jurors. So the question is, are proceedings in bastardy “ civil suits?”

Suits are either civil or criminal. All criminal suits are prosecuted in the name of the State ; but all suits prosecuted in the name of the State are not criminal suits : — an action of debt may be prosecuted in the name of the State. The true test is, when the proceeding is by indictment, it is a criminal suitwhen by action or other mode, although in the name of the State, it is a civil suit, and should be by the clerks put on the civil, as distinguished from the State docket. By the “'Declaration of Rights,” no free man shall be put to answer any criminal charge, but by indictment, presentment, or impeachment. By Rev. Stat., ch. 35, sec. 6, no person can be charged in a criminal proceeding, except upon a bill of indictment. Tested in this way, the present is a “ civil suit,” although prosocuted in the name of the State, and the plaintiff was entitled to four peremptory challenges. The object of the suit is not to punish the defendant for an act done to the injury of the public, but to indemnify the County of Wayne against a liability for the support of a bastard child, of which the defendant is by law the reputed father.

The other question is settled. State v. Floyd, 13 Ire., 382.'

Per Curiam. Judgment reversed, and venire de novo awarded.