State ex rel. Pierce v. Williams
| Decision Date | 11 December 1923 |
| Docket Number | 4791. |
| Citation | 120 S.E. 594,95 W.Va. 218 |
| Parties | STATE EX REL. PIERCE v. WILLIAMS. |
| Court | West Virginia Supreme Court |
Submitted December 4, 1923.
Syllabus by the Court.
An order of arrest on a charge of bastardy issued by a justice of the peace directed to the sheriff or a constable commanding the arrest of the putative father and delivery of his person to some justice of the county to be dealt with according to law, and which states that an unmarried woman naming her, of the county, on the date of the warrant appeared before the justice, was examined under oath, and accused the defendant of being the father of a female bastard child of which she was delivered on a certain date (less than three years prior to the date of examination) is sufficient; and a motion to quash is properly overruled.
Where the prosecutrix in a bastardy proceeding is a minor and has resided and worked in the county for more than two years prior to the time she has become enciente by the accused and, after becoming pregnant and ill and incapacitated to work, she goes to her mother's home in another state, where her child is delivered, afterwards returning to the county to continue her work, such absence at her mother's home will not prevent bastardy proceedings against the putative father, on the ground that she has not resided in the county for one year next preceding the complaint.
Where, at the conclusion of the evidence, neither party has tendered instructions, but unite in asking the court to orally charge the jury, which the court then does, without objection or exception from either party, neither party can complain in the appellate court that the charge was not in writing, and therefore erroneous.
A preponderance of the number of witnesses for the establishment of a fact does not make a preponderance of the evidence. The jury are the sole judges of the credibility of witnesses and the weight to be given to the oral evidence.
It is not necessary that a guardian ad litem, or next friend, be appointed in a bastardy proceeding for the prosecutrix who is a minor.
Error to Circuit Court, Cabell County.
Proceedings in bastardy by the State, on the relation of Jennie Pierce, against Buford Williams. Judgment of conviction, and defendant brings error. Affirmed.
Warth & Peyton, of Huntington, for plaintiff in error.
E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for defendant in error.
The judgment complained of was entered the 18th of September, 1922, in a bastardy proceeding, and required defendant, Buford Williams to pay to the county court $75 a year up to and including the year 1929, and to give bond in the penalty of $1,000 for the payment of said sums.
Jennie Pierce, an unmarried woman, accused Buford Williams of being the father of a female bastard child born the 8th day of October, 1921. A warrant was issued for his arrest under the statute, the case was tried by a jury in the circuit court, and on a verdict of guilty as charged in the complaint the judgment was rendered.
A motion to quash the warrant was made and overruled, and this is the first assignment of error. The warrant on its face is regular, reciting that Jennie Pierce, an unmarried woman, of the county, had that day, upon examination under oath before the justice of that county, issuing the warrant, accused one Buford Williams of said county of being the father of a female bastard child, of which she was delivered in said county on the 8th day of October, 1921, and commands that defendant be brought before the justice to be dealt with according to law. It is doubtless the examination of Jennie Pierce, the complainant, which was the subject of the motion to quash. The statute requires that the justice shall examine the complainant under oath, and reduce her examination to writing, and sign it. This was done, and it shows that she was unmarried, appeared before the justice on the 30th day of January, 1922, and being sworn "deposes and says that she is an unmarried woman, who has resided in the said county for one year next preceding this date on the 8th day of October, 1921, she was delivered of a female bastard child, and that Buford Williams of said county is the father of said child." The point is made that the examination does not show that she had resided in the county of Cabell for the year preceding the date of her complaint; that is, that she had resided in said county for one year next preceding the 8th day of October, 1921, and not for one year preceding the 30th of January, 1922, the date of the warrant. We do not so interpret her examination. The date of the birth of the child was October 8, 1921. The examination under oath says she has resided in the county for one year next preceding this date, evidently referring to the 30th of January, 1922, the date at which she appeared before the justice. Evidently the justice was following the form prescribed by Dr. Hogg on page 499 of Hogg's Treatise and Forms, and neglected to place after the words "this date" a semicolon as given in that form. There is no punctuation between the words "this date" and "on the 8th day of October, 1921"; but it is clear from the context that "this date" refers to the date on which the information was given. The warrant is good on its face, containing all the necessary averments. The motion to quash was properly overruled.
Defendant filed a plea in bar setting up the fact that Jennie Pierce was a resident of the state of Ohio and not of the state of West Virginia, and that therefore she could not maintain the action. The evidence of the prosecutrix is that she had resided in Huntington, Cabell county, about 2 1/2 years next preceding and had lived with her sister in that city; that she was employed as elevator girl in one of the bank buildings of that city; that on the 7th of January, 1921, she became enciente by Williams while on an automobile excursion into the nearby country; and becoming unwell two or three months afterwards as a result of her pregnancy, and not able to continue her employment, she went to her mother, who lived in Millersport, Ohio, a short distance from the Ohio river and near the city of Huntington, where she remained until she was delivered of the child in October, 1921; that after her recovery from her childbed sickness she returned to Huntington in December, 1921, and on January 30, 1922, instituted the action; that it was never her intention to leave Huntington, which she considered her home and residence, and that her trip to Ohio was for the purpose of having her mother take care of her in her sickness attendant upon the birth of the child; that at the time of the trial she was residing in the city of Huntington. Upon the coming in of this evidence a motion was made to strike it out and dismiss the case because she had not resided in the county of Cabell one year next preceding the time of her complaint and that she was then a resident of Ohio. The court refused this motion, and this is the second assignment of error. The statute does not require that the prosecutrix shall be a resident of the county for one year next preceding her complaint in the legal sense of residence. It only requires that she shall have resided therein for that period. For about 2 1/2 years she had been residing in the city of Huntington with her sister and making her livelihood. This was with the consent of her mother, who appears to be a widow. It is immaterial whether she had gained a legal residence there. While she did not actually stay in Cabell county for one year next preceding her complaint, it is apparent that her absence was only temporary for the purpose of giving birth to the child and at the most natural place which she would likely go, to her mother's house, where tender care and sympathy could be bestowed. Had she gone to Cincinnati or other convenient place outside Cabell county to a lying-in hospital or for the purpose of being attended in her childbirth by competent physicians and nurses, it would not preclude her from maintaining this action. If it should be held that her temporary absence would preclude her, any break in her actual residence for any length of time in the year preceding her complaint would be sufficient to defeat her action. A like contention was made in Bowen v. Parsons, 78 W.Va. 791, 90 S.E. 336, where lack of residence of the prosecutrix in the county for one year next preceding the date of the accusation was set up by special plea. The proof showed that for a month preceding the birth of the child and for another succeeding that date she was at the home of her father outside the county, but that with the exception of this break in the continuity of her residence she had resided for several years in the county in which the complaint was filed. Judge Poffenbarger disposed of this point of error by saying: "It would be useless to take the time and space here to demonstrate that this temporary absence from the county did not destroy the residence in the county which she had gained in which the proceeding was instituted."
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