State v. . Peeples

13 S.E. 8, 108 N.C. 768

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Clark, J.:

1. An inspection of the affidavit shows that it was sworn out by the woman before a Justice of the Peace. It appears to be voluntary, and there is nothing to indicate the contrary.

2. It is not necessary that it should appear affirmatively that the woman is a single woman. If she is a married woman, that is a matter of defence, and only then to the extent of raising a presumption that the child is legitimate. State v. Pettaway, 3 Hawks., 623. There is no presumption of law that she is married rather than single; indeed, “it is to be assumed that she is a single woman until it is made to appear that she is married.” State v. Allison, Phil., 346; State ex rel. Hicks v. Higgins, 72 N. C., 226. In a very recent case, State v. McDuffie, 107 N. C., 885, which was an indictment for fornication and adultery, it is held that the single state being the first in order of time, is presumed to continue till a change to the married state is shown.

3. The proceeding is, in the main, civil in its nature (State v. Carson, 2 D. & B., 368; State ex rel. Adams v. Pate, Busb., 244; State v. Higgins, supra), and the conclusion “ against the form of the statute,” etc., is unnecessary. But were it a criminal aciion such conclusion was mere form, and immaterial, as has been repeatedly held. State v. Sykes, 104 N. C., 694; State v. Kirkman, 104 N. C., 911; State v. Harris, 106 N. C., 682; State v. Peters, 107 N. C., 876.

Affirmed.