State Ex Rel. Imogene Cottrill v. Jarvis, (No. 8895)

• Decision Date: 17 October 1939
• Docket Number: (No. 8895)
• Citation: 121 W.Va. 496
• Court: West Virginia Supreme Court
• Parties: State ex rel. Imogene Cottrill, plaintiff, v. Rex Jarvis,defendant.

121 W.Va. 496

State ex rel. Imogene Cottrill, plaintiff,

v. Rex Jarvis, defendant.

(No. 8895)

Supreme Court of Appeals of West Virginia.

Submitted September 26, 1939.

Decided October 17, 1939.

Bastards

Where, after conviction in a bastardy proceeding, a defendant has been held in jail for a period of months in default of bond, and, on his petition for release from custody, it reasonably appears that he has no property nor income and cannot procure a bondsman, the defendant should be discharged from custody, subject to further order of the court, as circumstances may require.

Error to Circuit Court, Calhoun County.

Bastardy proceeding by the State, on the relation of Imogene Cottrill, against Rex Jarvis. To review an order refusing to discharge the defendant from custody, he brings error.

Order reversed; case remanded for further proceedings. S. P. Bell, for plaintiff in error.

Clarence W. Meadows, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

Maxwell, Judge:

(On the record and briefs this case is improperly styled Rex Jarvis, plaintiff, vs. Emogene Cottrill, defendant. In the heading hereof we are styling the case as it should be, and in the opinion Imogene (not Emogene) Cottrill is referred to as plaintiff and Rex Jarvis as defendant.)

This is a bastardy proceeding wherein on November 18, 1937, Rex Jarvis was adjudged, under jury verdict, to be the father of an illegitimate male child born to Imogene Cottrill April 29, 1937. As part of the order carrying the adjudication of guilt, the court ordered that Jarvis pay to the mother of the child for its use and benefit the sum of five dollars per month, beginning November 20, 1937, and continuing until the child shall attain the age of sixteen years, unless it sooner die. It was further required of Jarvis that he execute and deliver to the clerk of the court a bond with good and solvent security conditioned for the faithful and prompt payment of the amounts adjudged against him. In default of bond the defendant was committed to jail. On this writ of error there is involved only the trial court's refusal to discharge the defendant from custody under his petition filed in August, 1938.

It appears that after being committed to jail in November, 1937, he remained there until in the month of June, 1938, a period of about eight months; that between that date and the twenty-fifth of November, 1938, he was relieved from custody part of the time; that on the latter date, after hearing evidence on his petition for release, the court declined to release the defendant from imprisonment and remanded him to jail; that he has neither property nor income and, by reason of being in jail, is unable to earn any money; that because of his long detention, his health is becoming impaired, as is indicated in part by a substantial loss of weight.

By her answer to the defendant's petition, the plaintiff denies that he is sick, and asserts that he is a strong and healthy man and is able to comply with the court's order in the bastardy case. Also, she alleges that he is able to give bond if he desires to do so. However, she offers no evidence to support these averments.

The bastardy statute provides that a defendant who has been adjudged guilty be required to furnish bond for faithful discharge of the payments exacted of him by the court, and the court shall "order him to jail until such bond be given in the court or filed in the office...