Holmes v. Clegg

• Decision Date: 18 May 1948
• Docket Number: C.C. No. 736.
• Citation: 48 S.E.2d 438,131 W.Va. 449
• Parties: HOLMES v. CLEGG.
• Court: West Virginia Supreme Court

48 S.E.2d 438

131 W.Va. 449

HOLMES v. CLEGG.

C.C. No. 736.

Supreme Court of Appeals of West Virginia.

May 18, 1948

Dissenting Opinion June 26, 1948.

Certified from Circuit Court, Tyler County.

Syllabus by the Court.

1. The pendency of a nonsupport prosecution against the father of an illegitimate child, subsequently dismissed by the prosecuting attorney, does not, per se, constitute an abandonment of a prior bastardy proceeding.

2. The principle established by Code, 56-6-8, and judicial decisions, preventing discontinuance of proceedings on the trial docket of a court of record, do not apply to a bastardy proceeding, wherein the accused has not been apprehended, or has not appeared in the circuit court having jurisdiction.

3. A warrant in a bastardy proceeding must be served by apprehending the accused within a reasonable time after its issuance. Whether such reasonable time has elapsed depends upon the facts and circumstances of each case.

Ira J. Partlow, Atty. Gen., and Chandler Curd Asst. Atty. Gen., for plaintiff.

Walter F. Ball and Ronald R. Hassig, both of New Martinsville, for defendant.

LOVINS Judge.

The Circuit Court of Tyler County having sustained a demurrer to defendant's second amended special plea, hereinafter called 'plea', on joint application of the parties certified its ruling to this Court.

Sarah Holmes, the plaintiff herein, on October 4, 1938, made a sworn written complaint before a justice of the peace of Tyler County, West Virginia, that she was an unmarried woman residing in that county; that on October 6, 1937, she was delivered of a male bastard child; and that the defendant Carl Raymond Clegg, was the father of said child. On the same day, the justice issued a warrant directed to any constable of Tyler County, commanding that defendant be apprehended. The warrant was sent to an officer in New Martinsville, in Wetzel County, West Virginia. Defendant was not apprehended, and on a date not disclosed by the record, the warrant was returned to the justice.

So far as shown by the record, no further action was taken by plaintiff until April, 1946, when she went before the same justice who had issued the above-mentioned warrant, and caused another warrant to be issued for defendant, charging him with nonsupport of the same child mentioned in the bastardy warrant. Defendant was arrested under the nonsupport warrant, and taken before the same justice, who found defendant guilty of the charge of nonsupport. On appeal to the Circuit Court of Tyler County, the prosecution for nonsupport was dismissed on motion of the prosecuting attorney of that county.

The justice, having retained in his possession the original bastardy warrant, on or about the 15th day of November, 1946, 'reissued' the warrant, dated the 4th day of October, 1938. Whether the justice placed the original warrant in the hands of an officer to be executed, or whether he wrote a new warrant is not clear. At any rate, the defendant was apprehended on the 'reissued' warrant, and was taken before the justice, where he was held for his appearance before the Circuit Court of Tyler County.

Defendant on his appearance in the circuit court filed the plea above mentioned, alleging the facts hereinabove stated. Plaintiff demurred to that plea.

The demurrer having been sustained, as above stated, the trial court certified two questions to this Court which, in substance, are as follows: (1) The facts set forth in the plea, alleged by way of conclusion, do not constitute an abandonment of this proceeding; and (2) the facts pleaded do not bar the prosecution of this proceeding.

The initiation and determination of a bastardy proceeding are provided for in detail by Code, 48-7. There was no remedy at common law to compel a putative father of an illegitimate child to support it. People v. Snell, 216 N.Y. 527, 111 N.E. 50, Ann.Cas.1917D, 222. A bastardy proceeding is a civil rather than a criminal proceeding, although a warrant is authorized by statute. State v. Easley, W.Va., 40 S.E.2d 827. The purpose of such proceeding is to prevent the child from becoming a public charge, and to compel the father to maintain and support it for such period as may be fixed by the Court. State v. Easley, supra; State ex rel. v. Jarvis, 121 W.Va. 496, 5 S.E.2d 115; Waters v. Riley, 87 W.Va. 250, 104 S.E. 559; Bratt v. Cornwell, 68 W.Va. 541, 70 S.E. 271. The issue in a bastardy proceeding is whether the defendant is the father of the child. State v. Easley, supra; Swisher v. Malone, 31 W.Va. 442, 443, 446, 7 S.E. 439. A justice has no authority to resolve that issue. His power and authority are aptly described in the following language: 'His function is prescribed by the statute and limited to the examination of the complainant under her oath, reduction of the examination and complaint to writing, the taking of her signature, issuance of the warrant, requirement of a recognizance in a prescribed amount, and transmission of the papers to the circuit court, the last-named duty arising by necessary implication. All of these duties are substantially, if not wholly, ministerial. Nowhere does the statute authorize him to enter any final order in the proceeding. It being purely statutory, the statute is the measure and the limit of his jurisdiction.' Dent v. McDougle, 75 W.Va. 588, 590, 84 S.E. 382, 383.

Statutory provisions applicable to the proceeding read as follows: 'Any unmarried woman may go before a justice of the county in which she resides and accuse any person of being the father of a bastard child of which she has been delivered. Such justice shall examine her under oath, and reduce her examination to writing and sign it. On such examination, unless the child be three years old or upwards, the justice shall issue a warrant, directed to the sheriff of, or a constable in, any county where the accused may be, requiring him to be apprehended and taken before a justice of the county in which he may be found; and it shall be the duty of such justice to require the accused to enter into to a recognizance, * * * conditioned for his appearance at the next term of the circuit court of the county in which such warrant issued, * * *.' Code, 48-7-1. It will be observed that a warrant issued under the above-quoted statute may be served in any county of this State where the accused is found, and that in such county he may enter into a recognizance, conditioned for his appearance at the next term of the circuit court of the county where the warrant was issued.

In the instant case the complaint and issuance of the warrant thereon were timely, the child having been born approximately one year prior to the date on which the complaint was made and the warrant was issued. The reasons for the non-apprehension of defendant are not disclosed by this record, the plea simply averring that the warrant was returned 'not served.' It is to be assumed that by such phrase it is meant that defendant was not taken into custory by virtue of the warrant.

Has the proceeding under the bastardy statute been abandoned? Apparently relying on the commencement of the nonsupport prosecution by plaintiff and the dismissal of that proceeding by the Circuit Court of Tyler County, defendant contends that such abandonment has taken place.

Nonsupport of a child by its father is a criminal offense. State v. Rector, W.Va., 43 S.E.2d 821, 824; State v. Richmond, 124 W.Va. 777, 780, 22 S.E.2d 537. A prosecution for nonsupport of an illegitimate child cannot be maintained unless; (1) The child is under the age of three years; or (2) the paternity is admitted by defendant; or (3) the defendant admitted the paternity of the child before it reached the age of three years; or (4) the paternity had been judicially determined in a bastardy proceeding or a nonsupport prosecution commenced within three years after the birth of the child. State v. Richmond, supra; State v. Mills, 121 W.Va. 205, 2 S.E.2d 278. The provisions of Code, 48-7-1, are read into and considered a part of the nonsupport statute. State v. Hoult, 113 W.Va. 587, 169 S.E. 241. For the proposition that the paternity of an illegitimate child may be determined in a nonsupport proceeding, see State v. Reed, 107 W.Va. 563, 149 S.E. 669; State v. Bennett, 90 W.Va. 477, 111 S.E. 146.

A bastardy proceeding and prosecution for nonsupport have the same general purpose, but the issues are different. Though the prosecution for nonsupport was instigated by plaintiff, her acts in that respect do not constitute abandonment of the bastardy proceeding. No other act or conduct on the part of plaintiff is alleged in the plea, which if proved would show an intention on her part to abandon the bastardy proceeding. Without going into the question whether the plea alleges facts by way of conclusion, we are of opinion that the facts alleged in the plea are not such as show an abandonment of the bastardy proceeding by plaintiff.

Plaintiff contends that there has been no discontinuance of the bastardy proceeding. In support of that contention Code, 56-6-8, and the case of Taylor v. Taylor, 76 W.Va. 469, 85 S.E. 652 are cited.

The statute relied upon, in substance, provides that a case on the docket of any court undetermined before the end of the term shall stand continued to the next regular term without an order of discontinuance. Taylor v. Taylor, supra, is authority for the proposition that a case once on the trial docket of a court of record is not discontinued for failure to keep it on the docket or to enter orders of continuance. It will be noted that Code, 56-6-8, makes reference to a term of court, and therefore is not applicable to a justice's court. Moreover, this proceeding never reached the trial docket of a court of record until after the...