#### STATE et al. v. D. A. McDONALD.

(Filed 6 April, 1910.)

1. Bastardy — Civil Nature.

Under Revisal, sec. S, a proceeding in bastardy is of a civil character and to enforce a police regulation.

2. Bastardy — Evidence—Affidavit of Prosecutrix — Paternity—Burden of Issue.

The affidavit of- the prosecutrix formally filed and presented before a justice of the pence in proceedings in bastardy, when offered in evidence by the prosecution on the trial in the Superior Court on appeal, raises the presumption that the defendant was the father of the child, and the burden of rebutting this presumption is on him. Revisal, 255.

3. Same — “Prima Facie” — Presumptive.

Proceedings in bastardy are of an anomalous nature, and therefore, though such proceedings áre of a civil character, the decisions that the terms “prima facie" and “presumptive,” when applicable to civil issues, affect only the burden of proof, and not of the issue, are not applicable in proceedings in bastardy; and the affidavit 'of the prosecutrix, when properly made and presented in evidence, changes the burden of the issue as to defendant’s paternity, and places on the defendant the burden of showing to the contrary.

*8034. Bastardy — Evidence—Change of Rule — Legislative Power — Constitutional Law.

Revisal, sec. 235, making the examination of the prosecutrix in bastardy proceedings, whether taken before a justice or' at term, presumptive evidence against the accused, is constitutional and valid, being a change made in the rule of evidence, within the legislative power.

5. Instructions — Term “Satisfy” — Words and Phrases.

Where the principle applies, the terms “must satisfy” and must “satisfy by the preponderance of the evidence” are of equivalent import, and in a charge to the jury, in proper instances, the use of the first-named expression is not reversible error.

6. Bastardy — Paternity—Burden of Issue — State’s Evidence — Instructions Erroneous.

When, in bastardy proceedings, under the charge of the court upon the burden of the issue, the jury are instructed, in effect, that the evidence to rebut the presumption of paternity raised by the affidavit of the prosecutrix must come from the defendant, and there is evidence introduced by the State making in defendant’s favor, it is reversible error; for both in criminal and civil cases the issue must be determined from all the testimony properly admitted which is relevant to the inquiry.

Beown, J., concurs in result. ,

Appeal from Lyon, J., at October Term, 1909, of EobbsoN.

Proceedings in bastardy under the statute, heard' on appeal from a justice’s court.

The plaintiff filed affidavit in due form as prescribed by the statute appertaining to such cases, and on the hearing before the justice of the peace the issue as to the paternity of the child was found against the defendant. Appeal having been duly taken from the judgment rendered on the trial in the Superior Court, the plaintiff offered in evidence her affidavit which had been formally filed by plaintiff. Defendant, a witness in his own behalf, denied the paternity of the child, and denied that he had ever had intercourse with the prosecutrix, and introduced other evidence tending to contradict that of the prosecutrix and to corroborate his own statement. Prosecu-trix was herself examined as a witness, and offered other testimony tending to corroborate the facts contained in her affidavit. In apt time defendant requested the court to charge the jury, “That from all the evidence the State and Mary Shaw must satisfy you by the greater weight of the evidence that D. A. McDonald is the father of the child, or you will answer the issue No.’ ” This prayer was refused.

Among other things, the court charged the jury, “That the affidavit of the prosecutrix is prima facie evidence that the defendant is the father of the child, and that the burden is upon *804tbe defendant to rebut tbe presumption raised by tbe affidavit, by introducing evidence to satisfy you tbat be is not tbe father of tbe child; and unless tbe defendant has so satisfied you by tbe evidence be has introduced in this case, you will answer tbe issue ‘Yes.’ ” To this instruction defendant excepted, assigning for error tbat tbe charge imposes tbe burden of tbe issue on tbe defendant; tbat it is erroneous as to tbe quantum of proof required of defendant, and erroneous in tbat, so far as tbe defendant was concerned, tbe jury was not. permitted to consider evidence offered by tbe State making in favor of tbe defendant.

On an issue as to tbe paternity of tbe child, there was verdict in favor of tbe prosecutrix; judgment on tbe verdict, and defendant excepted and appealed.

Attorney-General and McLean & McLean for tbe State.

McIntyre, Lawrence & Proctor and Shaw & Johnson for defendant.

Hoke, J.,

after stating the case: It is now established tbat under our statute on tbe subject, Revisal 1905, sec. 8, a prosecution of this character is a civil proceeding to enforce a police regulation. S. v. Addington, 143 N. C., p. 683; S. v. Liles, 134 N. C., p. 735. There was a time, from 1894 to 1904, when tbe Court held, reversing its former ruling on tbe subject, tbat a bastardy proceeding under tbe statute was in tbe nature of a criminal prosecution, a position which provoked vigorous protest from two of the Associate Justices, expressed in a strong dissenting opinion of tbe present Chief Justice, in S. v. Ostwalt, 118 N. C., p. 208, and later, as stated, tbe Court returned to its original construction, bolding tbat tbe prosecution, while possessing some anomalous features, was a civil proceeding. An informing account of tbe debates on these differing views will be found in tbe opinion of tbe Court in S. v. Lisle, supra, tbe case in which tbe Court returned to its original position, a decision which was approved and confirmed in S. v. Addington, supra; and, as tbe statute now stands, this may be taken for accepted law.

These cases, too, which uphold tbe view which now prevails, are also to tbe effect tbat where tbe mother, according to tbe provisions of tbe statute, has formally filed her affidavit charging tbe paternity, this, on tbe bearing either before tbe justice’s court or in term, shall have tbe force and effect of changing tbe burden of tbe issue as to tbe paternity of tbe child, and tbat on tbe introduction of tbe affidavit on tbe part of tbe mother, tbe testimony introduced and relevant must be considered and tbe question determined according to this ruling. Undoubtedly, *805tbe Legislature lias tbe power to give tbis artificial weight to tbe affidavit of tbe prosecutrix. Tbis bas been beld under given conditions even in criminal cases. S. v. Barrett, 138 N. C., p. 630; S. v. Dowdy, 145 N. C., p. 432. In tbis last case tbe Court, speaking to tbe general principle and in reference to tbe former decision, said: “In Barrett’s case we.have beld that tbe Legislature bad tbe constitutional power to change tbe rules of evidence and to declare that certain facts and conditions when shown shall constitute prima facie evidence of guilt, tbe limitation being that tbe facts and conditions should be relevant to- tbe inquiry and tend to prove tbe fact in issue.” And see, on tbis point, S. v. Rogers, 119 N. C., p. 793.

Recurring to tbe principal question, tbe section of tbe statute more especially applicable, Revisal, sec. 255, provides in part as follows:

“255. Procedure on appeal. Upon tbe trial of tbe issue, whether before tbe justice or at term, tbe examination of tbe woman, taken and- returned, shall be presumptive evidence against tbe person accused, subject to be rebutted by other testimony which may be introduced by tbe defendant, etc.”; and some of tbe decisions upholding tbe construction indicated will be found in S. v. Mitchell, 119 N. C., 784; S. v. Cagle, 114 N. C., 835-839; S. v. Williams, 109 N. C., 846; S. v. Rogers, 79 N. C., 609; S. v. Bennett, 75 N. C., 305.

In S. v. Mitchell, Avery, J., delivering tbe opinion, said: “Tbe charge that tbe oath and examination of the mother of tbe bastard child was prima facie evidence of tbe defendant’s guilt was not erroneous. S. v. Rogers, 79 N. C., 609; Tbe Code, sec. 32. Prima facie evidence is that which is received or continued until tbe contrary is shown. Kelly v. Johnson, 6 Peters (U. S.), 622. It is clear from the terms of tbe statute (Code, sec. 32) that tbe word ‘presumptive’ is used there to define evidence that must be received and treated as true ‘till rebutted by other testimony, which may be introduced by tbe defendant,’ and that it is therefore synonymous with prima facie. We see no force in tbe suggestion that there was error in tbe use of one of tbe terms rather than tbe other.”

In S. v. Williams, supra, tbe following charge was approved: “In an issue of paternity in a bastardy proceeding tbe written examination of tbe mother is presumptive evidence that de-fendaift is tbe father of tbe child, and when such written examination is introduced by tbe State, as in tbis ease, it devolves upon the defendant, by a preponderance of tbe evidence, to show that be was not tbe father. Upon tbe failure of tbe defendant to so show, by a preponderance of tbe evidence, that *806be is not tbe father, it is tbe duty of tbe jury to convict. If tbe defendant bas satisfied tbe jury, by a preponderance of tbe evidence, that be is not tbe father of tbe child, then tbe jury should acquit. If, however, tbe oral testimony taken together, both for'tbe prosecution and defendant, left the minds of tbe jury in doubt, then tbe presumption raised by tbe written examination would not be rebutted, and tbe defendant would be guilty.” .

In S. v. Rogers, 79 N. C., supra, it was held: “On tbe trial of an issue of bastardy, tbe court below charged tbe jury that 'The written examination of tbe woman was presumptive evidence that tbe defendant was tbe father of tbe child, and that it devolved on him by a preponderance of tbe evidence to show that be was not; and that if, taking all tbe evidence into consideration, fjotb sides were evenly balanced, tbe State was entitled to a verdict’: Held, not to be error”; and substantially tbe same ruling was made in S. v. Bennett, supra.

So far as examined, we find nothing in opposition to tbe principle announced in these decisions, except in tbe case of S. v. Rogers, 119 N. C., 795. In that case tbe Court, wrestling with some of tbe perplexities incident to tbe position then entertained, that bastardy proceedings under tbe statute being of a criminal nature, to wit, (1) that the artificial weight given to tbe woman’s affidavit violated defendant’s constitutional right to be confronted with tbe witness; (2) that it trenched upon tbe time-honored principle that guilt in criminal matters could only be established by proof beyond a reasonable doubt: Held, that notwithstanding tbe express provisions of tbe statute to tbe contrary, that when tbe defendant denied tbe paternity and testified contradicting tbe plaintiff, tbe matter then was at large, and defendant’s guilt must be established beyond a reasonable doubt. Tbe Court, as heretofore stated, having abandoned this interpretation of tbe statute and returned to tbe original ruling that tbe proceedings were of a civil nature, it would seem that tbe former construction should prevail, to tbe effect that when tbe affidavit of tbe woman charging paternity on defendant was formally filed and presented, this raised a presumption that tbe defendant was tbe father of tbe child, and tbe burden of rebutting this presumption was on tbe defendant.

We are not inadvertent to several of our recent decisions to tbe effect that in ordinary civil issues tbe terms "primS, facie” and “presumptive,” when applicable, have been held to affect tbe burden of proof only and not tbe burden of the issue (see cases collected and referred to in Winslow v. Hardwood Co., 147 N. C., 275) ; but this bastardy proceeding bas been said in *807frequent cases to be of anomalous nature and we do not think it well to apply such a principle to the construction of this statute and overturn so many repeated and well-considered decisions to the effect that in these cases the affidavit of the woman changes the burden of the issue and places on the defendant the burden of showing the contrary. See, further, S. v. Patton, 27 N. C., 180; S. v. Goode, 32 N. C., 49.

We are, therefore, of opinion that defendant’s prayer for instruction was properly overruled, and the exception to the charge as given on the first ground stated was not well taken.

Nor can the defendant’s exception on the second ground as stated by him be sustained, that there was error in charging the jury that the presumption of paternity having been raised by the woman’s affidavit, the burden was on the defendant to satisfy the jury to the contrary, the position being that the term “must satisfy” is stronger than the law requires. This proceeding being, as stated, of a civil nature, we have held in several recent cases that the terms “must satisfy” and must “satisfy by the preponderance of the evidence,” are of equivalent import, and certainly the distinction suggested will be.no longer held for reversible error. Fraley v. Fraley, 150 N. C., 504, citing with approval, on this point, the well-considered opinion of Associate Justice Walker in Chaffin v. Manufacturing Co., 135 N. C., 95.

We think, however, that the exception to the charge on the third ground noted by defendant must be sustained, to wit, that in meeting the burden placed on defendant by the presumption of law the charge restricts the defendant to the testimony introduced by him. It is accepted doctrine that both in criminal and civil causes the issue must be determined from all the testimony properly admitted which is relevant to the inquiry and whether it comes from plaintiff or defendant. S. v. Hicks, 125 N. C., 636; S. v. Rogers, 79 N. C., 609; and on the facts presented in restricting the defendant to the evidence tending to exculpate introduced by him, there was reversible error which entitled the defendant to a new trial.

New trial.

BbowN, J., concurs in result.