Luctle Pope v. J. II. Kincaid
| Decision Date | 22 September 1925 |
| Docket Number | (No. 5287) |
| Citation | 99 W.Va. 677 |
| Court | West Virginia Supreme Court |
| Parties | Luctle Pope v. J. II. Kincaid |
1. Bastards Minor Complainant in Bastardy Proceedings Need Not Sue by Next Friend.
It is not necessary, under our statute, for a minor^ who is a complainant in a bastardy proceeding, to sue by her next friend, (p. 682).
2. Same Character of Complainant in Bastardy Proceedings for Chastity is Not Involved.
On a prosecution for bastardy against the putative father of the bastard child, under the provisions of Chapter 80 of the Code, the character of the complainant for chastity is not involved in the issue, (p. 683).
3. Same Defendant May Not Show Carnal Connection of Prosecutrix With Other Men Except as Bearing on Paternity.
Upon the trial in such a proceeding the defendant will not be permitted to introduce evidence to prove that the complainant has at any time had carnal connection with other men, unless such connection has occurred within such a period before the commencement of her gestation that it is possible that one of such other persons may have been the father of the child, (p. 684).
4. Same Proof of Carnal Knotvledge of Prosecutrix by Other Men, Within Period Making it Possible for One of Them
to be Father of Child, is Only Circumstance to be Considered With Other Facts and Circumstances.
Proof of connection of complainant with a man other than the defendant, during the period last aforesaid, does not necessitate a finding for the defendant, but is merely a circumstance to be considered, together with all the other facts and circumstances of the case, in determining the parentage to the child, (p. 684).
5. Same In Bastardy' Proceedings, Child May be Exhibited to Jury, and its Appearance is Legitimate Subject for Comment.
In such proceedings, the child whose paternity is sought to be established, may properly be exhibited to the jury; and its appearance and features are legitimate subjects for comment by counsel^ in connection with the testimony of witnesses in the case. (p. 682).
(Bastards, 7 c. j. §§ 125, 136).
6. Same Mother of Illegitimate Child May Compromise and Settle With Reputed Father Her Claim for Damages Against Him; to Preclude Mother of Illegitimate Child From Prosecuting Bastardy Proceedings, Contract Must be Fair, Free From Fraud, and Founded on Good and Sufficient Consideration; Consideration of $50 for Complete Release Held Not Sufficient to Preclude Bringing Bastardy Proceedings.
In this state, and in states with like or similar statutes, the mother of a bastard child may compromise and settle with the reputed father her claims for damages against him. But to preclude her from instituting and prosecuting bastardy proceedings against her seducer, such contract must be fair, free from fraud and deceit, and founded upon a good and sufficient consideration. Upon the facts and circumstances shown in this case the consideration of $50.00 for a complete release held not to constitute a sufficient consideration therefor, (p. 685).
(Bastards, 7 C. j. §§ 64, 66, 68).
7. Same In Bastardy Proceedings, Only Preponderance of Evidence is Necessary to Conviction, and Verdict Rendered on Conflicting Evidence Will Not be Disturbed Unless Clearly Wrong.
In a bastardy proceeding only a preponderance of the evidence is necessary to a conviction, and a verdict rendered on conflicting evidence will not be disturbed unless it is clearlywrong, (p. 687).
(Appeal and Error, 4 C. J. § 2836; Bastards, 7 C. J. §§ 128, 170).
Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.
Error to Circuit Court, Nicholas County. Bastardy proceedings by Lucile Pope against J. H. Kincaid. Judgment against defendant, and he brings error.
Affirmed.
Alderson, Eddy & Dillinger, and Morton & Wooddell, for plaintiff in error.
Emmett Iloran, for defendant in error.
The writ of error was issued in this case to review the proceedings in a case of bastardy prosecuted by Lucile Pope against the plaintiff in error. Upon the trial in the circuit court the plaintiff in error, hereinafter called the defendant, was adjudged to be the father of the illegitimate child of the said complainant, Lucile Pope, and the usual order and judgment was entered by the court for the support of such child, as provided by statute.
In 1921, the complainant, then a girl of fifteen, came to Richwood, where she secured work in a clothes-pin factory. She became acquainted with the defendant Kincaid, a widower, aged fifty, who was the owner of a large store and also an extensive dealer in automobiles. Soon thereafter, according to her testimony, she was induced to come to his apartment, where he lived alone. Their liaison continued from the spring of 1922 until January of the following year. As a result thereof she became enceinte a few days after Christmas, 1922. She acquainted defendant with the fact, and he gave her medicine on two different occasions to produce an abortion. In May, 1923, her condition became apparent to factory officials and she was discharged. She was taken in a car to Weston, and finally found her way to Mrs. Mary Mullens, at Rivesville (near Fairmont), where the child was born in September. While at Rivesville, sometime in July, she received the following letter from the defendant::
"For Economical Transportation.
chevrolet
J. H. Kincaid, Richwood, W. Va. July 2, 1923.
I note what you say in your letter I have ben fair, I think the way you are trying to do as I told you it is a scheme that you are trying to pull to get some money now I know to much, to be scared in to any thing as you threaten as to your age. I know that you are helpless there, you have no clue whatever. So you can not scare any one, if you had acted half way decent. I you may have talked, you say you are broke why did you not make your friend at Camden on Gauley that you stayed with, gave you some money.
why did Earl leave Richwood, you had him scared when you was at Susie, you layed up stars with some one. now if you want $50.00 I will send you it and let me a lone find enclosed a contract you sign it and return it at once and I will send you the money at once.
if you dont sign this, I will stand you a suit Be fore I will pay any more, I have all the proof I need, when it comes to it.
I sent you a check to the Hospital for $10.00 what be came of that.
let me hear from you
It is not because I half to that I am giving you this, but just to help you out. if you want this money signed this Contract and return it at once, and I will send you the money at once
Yours Truly, "
The contract referred to in the foregoing letter is as follows:
The complainant signed and returned this contract to defendant and later received a check from him for $50.00.
Shortly after the birth of the child, both mother and child were taken in charge by a woman who looked after homeless girls, and both placed with the Salvation Army in Fairmont. From there, complainant was sent back to a woman social worker at Richwood. In company with this social worker she went to the office of the prosecuting attorney of Nicholas county, and as a result, a warrant charging defendant with the paternity of her child, was issued. The defendant enters a complete denial of any criminal intimacy with the complainant. He admits that she informed him of her condition in January, 1923; that he gave her the medicine, but that it was Chamberlain's Diarrhoea Remedy, and was not given for the purpose of producing an abortion. He states that she threatened him with prosecution, and sought to extort money by threats. He denies sending her away from Richwood, or having any part in so doing. He admits writing the letter of July 2, 1923, and that he prepared the contract and inclosed it for her to sign and return. He introduced three witnesses who testified that they had had illicit intercourse with complainant during the month of December the period of gestation; and other witnesses who stated that they had heard complainant make statements before and at the birth of the child that its father was another than defendant. In corroboration of the complainant's statement, a witness was produced who saw Kincaid give her the medicine, and who stated that the same did not correspond to the medicine he claims to have given her. Two witnesses stated that it was a red medicine with no wrapper or directions on the bottle and that complainant "became sick and threw up" as a result of taking it. The letter and contract are features in corroboration of the complainant's testimony that there had been criminal intimacy between her and the defendant.
The assignments of error relied upon by the defendant will be considered in their logical order.
The first assignment of error is that the plaintiff was a minor and that the suit should have been prosecuted by her next friend. This is without merit, Code, Chap. 80, sec. 3, specifically provides that in bastardy proceedings the action may be prosecuted in "the name of the woman". In Pierce v. Williams, 95 W. Va 218, it is held that it is not necessary that a next friend be appointed in a bastardy proceeding for the prosecutrix who is a minor, nor that the suit should have been prosecuted by her next friend.
The second assignment is that the court erred in permitting the child of complainant to be exhibited to the jury on the trial, and in allowing the...
To continue reading
Request your trial
-
Shelby J.S. v. George L.H.
...such contract must be fair, free from fraud and deceit, and founded upon a good and sufficient consideration." In Pope v. Kincaid, 99 W.Va. 677, 129 S.E. 752 (1925), we also rejected a compromise agreement because it was based on inadequate consideration. Recently, in some jurisdictions, co......
-
Farley v. Farley
...as in other civil cases, is sufficient to sustain the issue. 1 Jones on Evidence in Civil Cases, Fourth Ed., § 5. See Pope v. Kincaid, 99 W.Va. 677, 129 S.E. 752. We therefore see no error in the remark of the trial court as to where the burden of proof in the instant case lay, and the meas......
-
State ex rel. Worley v. Lavender
...in any section of the statute that any rule of evidence is to be abrogated. Chastity is not an issue in the proceeding, Pope v. Kincaid, 99 W.Va. 677, 129 S.E. 752, and both a married and unmarried woman may be examined as to their acts of sexual intercourse with the defendant, or with othe......
-
State ex rel. Toryak v. Spagnuolo, 14939
...proof has always been that only a preponderance of the evidence is necessary to a conviction in a bastardy proceeding. Pope v. Kincaid, 99 W.Va. 677, 129 S.E. 752 (1925). The majority of other jurisdictions in this country, likewise, hold that paternity proceedings are civil suits to be pro......