State v. Mills , 121 W. Va. 205 ( 1939 )

This case involves the sufficiency of a warrant for failure of maintenance of an illegitimate child.

The prosecution was originated by a warrant issued by a Cabell County justice of the peace accusing the defendant of having violated Code, 48-8-1 — the non-support statute.

The defendant appeared before the justice and moved to quash the warrant for the reason that an allegation of the warrant disclosed that the illegitimate child, with the paternity of which the defendant was charged, was at the time the warrant was issued three years of age. The motion to quash was overruled and, after the justice had found the defendant guilty, an appeal was taken to the Domestic Relations Court.

In that court, the defendant's renewed motion to quash the warrant was not acted upon, but the case was transferred to the circuit court where, after the motion to quash the warrant had been overruled, the defendant was found guilty and ordered to pay the mother of the child the amount due her under the justice's order, and in addition, five dollars a week until the child should reach the age of sixteen years.

The statutory provision under which this warrant is drawn contains no definition of the phrase "illegitimate child". Neither is there any provision concerning the age of the child excepting that it must be "under the age of sixteen years." Reading this section alone, there would be no limitation of time based on a proceeding under it save that which is applicable to all misdemeanors, dating from the time that a father had "without lawful excuse", deserted or willfully neglected or refused "to provide for the support and maintenance of his * * * illegitimate child * * * under the age of sixteen years, in destitute and necessitous circumstances * * * ."

In State v. Hoult, 113 W. Va. 587, 169 S.E. 241, this Court followed the rule laid down in State v. Reed, 107 W. Va. 563,149 S.E. 669, that the non-support statute so far as it relates to illegitimate children should be read and construed with the bastardy statute, Code, 48-7-1. The latter section provides that the justice shall issue a warrant based upon a bastardy charge "unless the child be three years old or upwards." However, in the Hoult case we stated respecting the application of the three-year rule in cases for non-support of illegitimate children: "Of course, under the non-support statute (Code 1931, 48-8-1) the father of an illegitimate child is amenable to punishment for failure to maintain such child under sixteen years of age, it being in destitute and necessitous circumstances, if the paternity is admitted, or has been judicially determined in either a bastardy proceeding or a non-support proceeding instituted within three year's after the child's birth." The expression, "is admitted", used in the above quotation, should not be narrowly construed. It should be taken to include an admission of paternity which had been made within three years following the birth of the child.

If the putative father, before the child has reached the age of three, admits the paternity of the child, the same result is thereby attained as though there had been an adjudication in a proceeding instituted within that period. It would be unconscionable to permit a man who had admitted the paternity of a child and contributed to its support within the first three years of its life, thereafter to avoid responsibility for the child because, foresooth, his liability had not been judicially determined within the stated period. The fact of his admission of paternity and his contribution of support, thereby lulling the mother into a sense of security on that point, would be the most effective reason why there would not be instituted against him a proceeding wherein there could be a judicial pronouncement.

But the warrant does not make a prima facie case within the principle hereinabove discussed. It states that the child is three years of age, and there is no allegation of present admission of paternity of the child, or that there had been such admission before the child attained the age of three years, or that there had been an adjudication thereof in a bastardy or non-support proceeding instituted within the period of three years after the birth of the child. Such an allegation is necessary to overcome, for the purposes of the accusation, the applicability of the three-year rule. Because of the lack of such allegation the warrant is fatally defective. The motion to quash should have been sustained.

For the reasons stated we reverse the judgment of the circuit court, and, entering such judgment as the trial court should have entered, we sustain the motion to quash the warrant and dismiss the proceeding without prejudice.

Reversed and rendered.