State Of West Va. v. Mills, (No. 8837)

Decision Date23 March 1939
Docket Number(No. 8837)
Citation121 W.Va. 205
PartiesState of West Virginia v. Ovvie Mills
CourtWest Virginia Supreme Court

1. Bastardy

Under the non-support statute (Code 1931, 48-8-1) the father of an illegitimate child is amenable to punishment for failure to maintain such child under sixteen years of age, it being in destitute and necessitous circumstances, if the paternity is admitted or had been admitted before the child attained the age of three years, or had been judicially determined in either a bastardy or non-support proceeding instituted within three years after the child's birth.

2. Bastardy

A warrant for non-support of an illegitimate child which discloses that the child is three years or more of age is fatally defective in the absence of an allegation that paternity of the child is admitted by the defendant, or had been admitted before the child attained the age of three years, or had been judicially determined in a bastardy or non-support proceeding instituted within three years after the child's birth.

Error to Circuit Court, Cabell County.

Ovvie Mills was convicted in justice court for nonsupport of an illegitimate child. An appeal was taken to the domestic relations court, and the case was transferred to the circuit court. To review a judgment of the circuit court finding the defendant guilty, he brings error.

Reversed and rendered.

Kenna, Judge, dissenting in part.

Thomas H. West, for plaintiff in error.

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

Maxwell, Judge:

This case involves the sufficiency of a warrant for failure of maintenance of an illegitimate child.

The prosecution was originated by a warrant issued by a Cabell County justice of the peace accusing the defendant of having violated Code, 48-8-1 the non-support statute.

The defendant appeared before the justice and moved to quash the warrant for the reason that an allegation of the warrant disclosed that the illegitimate child, with the paternity of which the defendant was charged, was at the time the warrant was issued three years of age. The motion to quash was overruled and, after the justice had found the defendant guilty, an appeal was taken to the Domestic Relations Court.

In that court, the defendant's renewed motion to quash the warrant was not acted upon, but the case was transferred to the circuit court where, after the motion to quash the warrant had been overruled, the defendant was found guilty and ordered to pay the mother of the child the amount due her under the justice's order, and in addition, five dollars a week until the child should reach the age of sixteen years.

The statutory provision under which this warrant is drawn contains no definition of the phrase "illegitimate child". Neither is there any provision concerning the age of the child excepting that it must be "under the age of sixteen years." Reading this section alone, there would be no limitation of time based on a proceeding under it save that which is applicable to all misdemeanors, dating from the time that a father had "without lawful excuse", deserted or willfully neglected or refused "to provide for the support and maintenance of his * * * illegitimate child * * * under the age of sixteen years, in destitute and necessitous circumstances * * *."

In State v. Hoult, 113 W. Va 587, 169 S. E. 241, this Court followed the rule laid down in State v. Reed, 107 W. Va. 563, 149 S. E. 669, that the non-support statute so far as it relates to illegitimate children should be read and construed with the bastardy statute, Code, 48-7-1. The latter section provides that the justice shall issue a warrant based upon a bastardy charge "unless the child be three years old or upwards." However, in the Hoult case we stated respecting the application of the threeyear rule in cases for non-support of illegitimate children: "Of course, under the non-support statute (Code 1931, 48-8-1) the father of an illegitimate child is amenable to punishment for failure to maintain such child under sixteen years of age, it being in destitute and necessitous circumstances, if the paternity is admitted, or has been judicially determined in either a bastardy proceeding or a non-support proceeding instituted within three year's after the child's birth." The expression, "is admitted", used in the above quotation, should not be narrowly construed. It should be taken to include an admission of paternity which had been made within three years following the birth of the child.

If the putative father, before the child has reached the age of three, admits the paternity of the child, the same result is thereby attained as though there had been an adjudication in a proceeding instituted within that period. It would be unconscionable to permit a man who had admitted the paternity of a child and contributed to its support within the first three years of its life, thereafter to avoid responsibility for the child because, foresooth, his liability had not been judicially determined within the stated period. The fact of his admission of paternity and his contribution of support, thereby lulling the mother into a sense of security on that point, would be the most effective reason why there would not be instituted against him a proceeding wherein there could be a judicial pronouncement.

But the warrant does not make a prima facie case within the principle hereinabove discussed. It states that the child is three years of age, and there...

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7 cases
  • State v. Epperly
    • United States
    • West Virginia Supreme Court
    • May 29, 1951
    ...be had, as if she were an unmarried woman.' He also cites and relies upon State v. Richmond, 124 W.Va. 777, 22 S.E.2d 537; State v. Mills, 121 W.Va. 205, 2 S.E.2d 278; State v. Hoult, 113 W.Va. 587, 169 S.E. 241 and State v. Reed, 107 W.Va. 563, 149 S.E. 669, the holdings in which are to th......
  • State v. Bragg
    • United States
    • West Virginia Supreme Court
    • October 15, 1968
    ...or admitted before the child attained the age of three years. Holmes v. Clegg, 131 W.Va. 449, 453, 48 S.E.2d 438, 441; State v. Mills, 121 W.Va. 205, 2 S.E.2d 278; State v. Hoult, 113 W.Va. 587, 169 S.E. 241. The two children involved in this case were older than three years of age when the......
  • Holmes v. Clegg
    • United States
    • West Virginia Supreme Court
    • May 18, 1948
    ...or a nonsupport prosecution commenced within three years after the birth of the child. State v. Richmond, supra; State v. Mills, 121 W. Va. 205, 2 S. E. 2d 278. The provisions of Code, 48-7-1, are read into and considered a part of the nonsupport statute. State v. Hoult, 113 W. Va. 587, 169......
  • Holmes v. Clegg
    • United States
    • West Virginia Supreme Court
    • May 18, 1948
    ...or a nonsupport prosecution commenced within three years after the birth of the child. State v. Richmond, supra; State v. Mills, 121 W.Va. 205, 2 S.E.2d 278. provisions of Code, 48-7-1, are read into and considered a part of the nonsupport statute. State v. Hoult, 113 W.Va. 587, 169 S.E. 24......
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