State ex rel. Worley v. Lavender

• Decision Date: 12 July 1963
• Docket Number: No. 12182,12182
• Citation: 147 W.Va. 803,131 S.E.2d 752
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Nancy WORLEY v. Jack LAVENDER.

Page 752

131 S.E.2d 752

147 W.Va. 803

STATE ex rel. Nancy WORLEY v. Jack LAVENDER.

No. 12182.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1963.

Decided July 9, 1963.

Dissenting Opinion July 12, 1963.

Syllabus by the Court.

1. The word 'cohabit', as used in Code, 48-7-1, is used in its popular and restricted sense, meaning sexual intercourse.

2. A warrant, issued under Code, 48-7-1, which shows on its face that it is based upon the sworn complaint of a married woman, charging the defendant with the paternity of a child born to her after she had lived separate and apart from her husband for a period of one year or more, that she had not cohabited with her husband during the separation, that the delivery took place after the expiration of the one year period and while the separation continued, and that the defendant is not her husband, is sufficient.

3. 'On the question of the legitimacy of a child born to a married woman, in the absence of a statute authorizing her to testify to the non-access of her husband, she is incompetent to testify to that fact.' State v. Reed, 107 W.Va. 563, 149 S.E. 669, Syl.Pt. 3.

E. W. Salisbury, T. B. Bickel, Jr., Charleston, for appellant.

C. Donald Robertson, Atty. Gen., J. Patrick Bower, Asst. Atty. Gen., Charleston, for appellee.

BROWNING, Judge.

Jack Lavender, hereinafter referred to as defendant, was convicted of bastardy in the Circuit Court of Boone County on January 23, 1962. A motion to set aside the verdict and to award a new trial was overruled and, upon application to this Court, an appeal and supersedeas was granted on June 4, 1962.

The warrant upon which defendant was tried is as follows:

'Whereas, Nancy Worley, a married woman living separate and apart from her husband, and a resident of said County, has this day on oath before the undersigned, a Justice of the Peace of said County, accused one Jack Lavender of being the father of a female bastard child of which she was delivered on the 15th day of February, 1961; that the said Jack Lavender is not her husband; that said child was born to her after she had been living separate and apart from her husband for one year and more; that she has not cohabited with her said husband during said separation; and that the said child was born after the expiration of said separation and while said separation continued.'

A motion to quash the warrant and render summary judgment for defendant was made on the grounds: (1) the warrant does not allege that the separation between the complainant, Nancy Worley, and her husband continued to the date of the birth of the child; and (2) the warrant states that the child was born after the expiration of the separation and thus shows that the separation was not continuous from the birth of the child to the issuance of the warrant, which motion was overruled.

The evidence may be briefly stated as follows: Nancy Worley, the complaining witness, was married to Garland Worley in October, 1959, and thereafter resided with him, as man and wife, in Kanawha County West Virginia, until January 13, 1960, when the parties separated, she going to her parents' home in Boone County where she has since resided. Sometime in June or July, 1960, the complaining witness engaged in one act of sexual intercourse with the defendant, Jack Lavender. The complaining witness testified over objection that she had seen her husband, Garland Worley, on but four occasions since the separation on January 13th, and on all of these occasions other witnesses were present. She further testified that she had not engaged in sexual intercourse with her husband since the date of the separation or with any person other than the defendant in the year preceding the birth of the child. She is corroborated as to the two instances in which her husband appeared in Boone County, that no opportunity for sexual intercourse was presented, by her mother, father and sister. The other two instances in which she saw her husband were at a hearing at which his probation was revoked and at his mother's funeral, which he attended under escort of prison authorities.

Garland Worley, the husband, also over objection, likewise denied that he had engaged in sexual intercourse with the complaining witness since the date of the separation and further stated that since August 25, 1960, until the following January he was confined in the Medium Security Prison at Huttonsville, West Virginia.

The baby was born February 15, 1961, and, as stated by the complaining witness, which statement is uncontroverted, was nine weeks premature. Defendant admitted the one act of sexual intercouse, asserting it took place in June of 1960, and attempted, by another witness, to show that the complaining witness had engaged in sexual relations with others at approximately the time of conception.

Eight assignments of error are made in the petition; however, in the brief these assignments have been classified into three main issues: (1) in refusing defendant's instruction No. 2; (2) in overruling the motion to quash the warrant on the ground that the warrant does not state that the alleged separation continued until the date of the birth of the child; and (3) in permitting Nancy Worley, the complainant, and her husband to testify as to nonaccess.

Defendant's instruction No. 2, as given, is as follows:

'The Court instructs the jury that when a child is born to a married woman it is presumed that the husband of the woman is the father of the child, and if she charges some other person with being the father of the child, then the burden is upon the State to prove that her husband did not cohabit with her within a period of one year's time prior to the birth of the child. The burden of proof does not lie upon the defendant to prove that the husband did cohabit with his wife during the period of one year, and you are further instructed that unless the State has proved unto you by strong and convincing evidence that the husband, Garland Wayne Worley, did not cohabit with his wife, then you are instructed to find the defendant not guilty.' (Italics supplied.)

The instruction, as offered, would have substituted the words 'have access to' for the words 'cohabit with', and while the word 'cohabit' generally means living together as man and wife in a common dwelling, Vol. 7A, Words and Phrases 'Cohabit; Cohabitation,' '* * * its popular and often legal significance is to copulate. * * *' DeBerry v. DeBerry, 115 W.Va. 604, 606, 177 S.E. 440, 441. To the same effect are: Martin v. Commonwealth, 195 Va. 1107, 81 S.E.2d 574; Tarr v. Tarr, 184 Va. 443, 35 S.E.2d 401. See also: Bracksmayer v. Bracksmayer, Sup., 22 N.Y.S.2d 110, 112; Herrman v. Herrman 93 Misc. 315, 156 N.Y.S. 688. 'Access', similarly has been held to mean sexual intercourse within the meaning of a paternity statute, People, upon complaint of D___ v. C___, 194 Misc. 94, 85 N.Y.S.2d 751, 753; Jackson v. Jackson, 182 Okl. 74, 76 P.2d 1062, though at common law the term meant sexual intercourse, or the opportunity therefor, under the four seas' rule.

Code, 48-7-1, is, in part, 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. * * * If a married woman live separate and apart from her husband for the space of one year or more, and shall not at any time during such separation, cohabit with such husband she may, if she be delivered of a child at any time after such one year, and while such separation continues, accuse any person, other than her husband, of being the father of such child, in like manner, and the same proceedings shall thereupon be had, as if she were an unmarried woman.'

It will be noted that the statute requires a married woman not only to live separate and apart from her husband, a condition not within the general meaning of 'cohabitation', for the space of one year, but also not to cohabit with him at any time during such separation.

In DeBerry v. DeBerry, 115 W.Va. 604, 177 S.E. 440, the Court had under consideration Code, 48-2-14, which provides: 'No divorce for adultery shall be granted * * * when it appears that the parties voluntarily cohabited after the knowledge of the adultery * * *.' (Italics supplied.) In holding a single act of coition sufficient to invoke the statute, the Court said: '* * * The literal or derivative meaning of the word 'cohabit' is to live together, while its popular and often legal significance is to copulate. The latter interpretation was, in our opinion, intended by the legislature. * * *' We attribute a similar intent to the legislature in using the word 'cohabit' in the statute invoked herein, thus restricting the term to its connotation of sexual intercourse. We, therefore, find no error in the modification of defendant's instruction No. 2 by the trial court. Moreover, the giving of an instruction substantially in the language of an applicable statute is not error. State v. Wilson, 145 W.Va. 261, 114 S.E.2d 465; State v. McCauley, 130 W.Va. 401, 43 S.E.2d 454.

There is likewise no error in the overruling of the motion to quash the warrant and to render summary judgment for the defendant. 'The bastardy proceeding provided for by the statute, though criminal in form, is a civil, not a criminal action.' State ex rel. Crouser v. Mercer, 141 W.Va. 691, 92 S.E.2d 745. However, in Gabbart v. Mullins, 122 W.Va. 282, 8 S.E.2d 886, the Court in holding a warrant insufficient under the statute, said:

'A careful reading would indicate that there are four elements of which the right of a married woman to recover for the support and maintenance of her bastard child is comprised: (a) She must have lived separate and apart from her husband for a space of one year or more; (b) she must not at any time during that separation...