State ex rel. Crouser v. Mercer
| Citation | 141 W.Va. 691,92 S.E.2d 745 |
| Decision Date | 15 May 1956 |
| Docket Number | No. 10750,10750 |
| Parties | STATE ex rel. Sharlene Davis CROUSER v. Donald Ray MERCER. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
1. A complaint, upon which a warrant is issued in a bastardy proceeding, is a pleading and when filed as such as a part of the record in such proceeding.
2. A warrant in a bastardy proceeding is a writ or process and under Section 32, Article 3, Chapter 96, Acts of the Legislature, 1949, Regular Session, which amended Article 3, Chapter 56, Code, 1931, is a part of the record without oyer of such writ or process.
3. An application for a writ of error to review the judgment of a court in setting aside a verdict and awarding a new trial must be presented to an appellate court within the time prescribed by statute.
4. A judgment of a circuit court, setting aside a verdict and reversing a judgment of a court of limited jurisdiction, upon writ of error in a bastardy proceeding, and remanding the proceeding to such court for a new trial, is subject to review upon writ of error from this Court if such writ of error is applied for or perfected within four months from the date of the entry of the judgment of the circuit court; but such judgment can not be considered or disturbed upon a writ of error from this Court to a subsequent judgment of the circuit court denying a writ of error to a final judgment of the court of limited jurisdiction, entered after the remand of the proceeding, which quashed the warrant in such proceeding on the ground that it was insufficient in law and dismissed the proceeding, and which writ of error from this Court was perfected within four months from the entry of the judgment of the circuit court denying a writ of error to the final judgment of the court of limited jurisdiction but was not applied for or perfected within four months from the entry of the prior judgment of the circuit court which set aside the verdict and remanded the proceeding for a new trial.
5. Though a judgment of a circuit court, setting aside a verdict and reversing a judgment of a court of limited jurisdiction, and remanding a bastardy proceeding to such court for a new trial, to which judgment of the circuit court a writ of error from this Court was not applied for or perfected within four months from its entry, can not be considered or disturbed by this Court upon a writ of error from this Court to a subsequent judgment of the circuit court denying a writ of error to the final judgment of the court of limited jurisdiction, entered after the remand of the proceeding, which quashed the warrant on the ground that it was insufficient in law and dismissed the proceeding, such judgment of the circuit court setting aside the verdict and remanding the proceeding, not having determined the question of the sufficiency of the warrant or the merits of the case, does not preclude consideration and determination of that question by this Court or control its action in reviewing the judgment of the circuit court and the judgment of the court of limited jurisdiction upon writ of error, perfected within the time prescribed by law, from this Court to the judgment of the circuit court which denied a writ of error to the judgment of the court of limited jurisdiction quashing the warrant and dismissing the proceeding.
6. The main purpose of Section 1, Article 7, Chapter 48, Code, 1931, relating to a bastardy proceeding, and of the proceeding authorized by that section of the statute, is to prevent an illegitimate child from becoming a charge upon the county and to compel the father to bear the burden of its maintenance and support, to the relief of the State and the public.
7. The statutory provision that an unmarried woman may accuse any person of being the father of a child of which she is delivered relates to her status at the time of the birth of the child and does not relate to her status when she makes and accusation against a person as its father or require her to retain her status as an unmarried woman at that time. Her status as an unmarried woman is fixed and determined as of the time of the birth of the child and not as of the time she makes a complaint against the person accused of being the father of the child.
8. A warrant in a bastardy proceeding, which is based upon the sworn complaint of a married woman, which is issued by a justice of the county in which she resides within three years after the birth of her child, which accuses a person of being the father of such child, and which shows that the complainant was an unmarried woman at and before she was delivered of such child, as sufficient under Section 1, Article 7, Chapter 48, Code, 1931; and a motion to quash such warrant on the ground that the complainant was not an unmarried woman when the complaint was made and the warrant was issued should be overruled.
John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., Paul E. Parker, Jr., Asst. Pros. Atty., Marion County, Harrison Conaway, Pros. Atty., Marion County, Fairmont, for plaintiff in error.
A. Blake Billingslea, Herschel Rose, Fairmont, for defendant in error.
This bastardy proceeding, in which a warrant for the arrest of the defendant, Donald Ray Mercer, was issued on September 25, 1950, by a justice of the peace of Marion County upon the sworn complaint of the relator, Sharlene Davis Crouser, accusing the defendant as the father of her bastard child born November 3, 1949, was tried and determined in the criminal court of that county on September 24, 1951.
The defendant made a motion to quash the warrant on the ground that the complaint and the warrant show that at the time the warrant was issued Sharlene Davis Crouser, the complaining witness, was a married woman and that they fail to show that she had not lived or cohabited with her husband for at least one year prior to the birth of the child of which she was delivered on November 3, 1949. The criminal court overruled the motion and the defendant entered his plea of not guilty. Upon the trial the jury returned a verdict of guilty and the court, having overruled the motion of the defendant to set aside the verdict and grant him a new trial, entered judgment that the defendant pay to the relator the expenses incurred in connection with the birth of the child, the sum of twenty five dollars per month from November 1, 1951, until the further order of the court, and costs. Bills of exceptions incorporating the evidence and the proceedings upon the trial of the case were signed, certified and saved to the defendant and made a part of the record by an order entered by the judge of the criminal court on December 5, 1951, within sixty days from the adjournment of the term of court at which the final judgment was rendered.
Upon the petition of the defendant, filed February 6, 1952, the Circuit Court of Marion County granted a writ of error and supersedeas on June 16, 1952, to the judgment of the criminal court. By order entered January 8, 1954, the circuit court set aside the verdict of the jury, awarded the defendant a new trial, and remanded the case to the criminal court for that purpose. The order of the circuit court suspended the execution of its judgment for a period of sixty days from the adjournment of the court to enable the plaintiff, the State of West Virginia, to apply to this Court for a writ of error to the judgment of the circuit court. The State, however, did not apply to this Court for a writ of error to the judgment rendered by the circuit court on January 8, 1954, and the case remained on the docket of the criminal court for a new trial.
After the remand of the case and during the regular January 1955 term of the criminal court, by order entered February 2, 1955, that court sustained the motion of the defendant to quash the warrant, on the ground that it is insufficient in law, and dismissed the case. Three bills of exceptions, incorporating the evidence and the proceedings contained in the bills of exceptions previously signed and certified by the judge of the criminal court on December 5, 1951, and the proceedings in the criminal court upon the remand of the case, were signed, certified and saved to the State and made a part of the record by an order entered by the judge of the criminal court in vacation on March 26, 1955, within sixty days from the entry of its final judgment quashing the warrant and dismissing the case.
On April 1, 1955, the State applied to the circuit court for a writ of error and supersedeas to the judgment of the criminal court entered February 2, 1955; and by order entered April 5, 1955, the circuit court denied the application and refused to grant the writ of error and supersedeas prayed for by the State.
To the judgment of the circuit court denying a writ of error and supersedeas to the judgment of the criminal court entered February 2, 1955, this Court granted this writ of error upon the petition of the State on June 4, 1955.
The State contends that the warrant which was quashed by the criminal court is a valid warrant, and the sole error assigned and relied on for reversal of the foregoing judgments entered April 5, 1955, and February 2, 1955, is the action of the circuit court in sustaining the judgment of the criminal court dismissing the case on the ground that the warrant is insufficient in law.
The defendant insists that the complaint and the warrant are fatally defective because they show that when the complaint was made and the warrant was issued on September 25, 1950, the relator, Sharlene Davis Crouser, was a married woman and that they do not show that she had lived separate and apart from her husband and had not cohabited with him for more than one year before the birth of the bastard child of which she was delivered.
The defendant also contends, in support of his motion to dismiss this writ of error as improvidently awarded,...
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