State v. Epperly, No. 10338

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation65 S.E.2d 488,135 W.Va. 877
PartiesSTATE, v. EPPERLY.
Decision Date29 May 1951
Docket NumberNo. 10338

Page 488

65 S.E.2d 488
135 W.Va. 877
STATE,
v.
EPPERLY.
No. 10338.
Supreme Court of Appeals of West Virginia.
Submitted April 17, 1951.
Decided May 29, 1951.

Page 489

Syllabus by the Court.

1. The rule that statutes which relate to the same subject should be read and construed together is a rule of statutory construction and does not apply to a statutory provision which is clear and unambiguous.

2. A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.

3. A warrant charging a defendant with the commission of the statutory offense of nonsupport of an illegitimate child, which states the elements of such offense and that the defendant has admitted the paternity of the child before it attained the age of three years, and which is based upon a sworn complaint made by a person who is cognizant of the stated facts, sufficiently charges an offense created by Section 1, Article 8, Chapter 48, Code, and is good on demurrer or motion to quash.

[135 W.Va. 878] William C. Marland, Atty. Gen., Thaddeus K. Kauffelt, Sp. Asst. Atty. Gen., for plaintiff in error.

Daugherty & Daugherty, Huntington, for defendant in error.

HAYMOND, Judge.

The defendant, Gilbert Epperly, was tried and found guilty by a Justice of the Peace of Cabell County, on December 19, 1949, upon a warrant which charged that he wilfully neglected to provide for support and maintenance of his illegitimate child. Upon appeal to the circuit court the warrant was quashed and the case dismissed by final order entered September 11, 1950, on the ground that the warrant was issued upon the sworn complaint of a person who is conceded to be the grandmother of the illegitimate child. To that judgment this writ of error was granted by this Court upon the petition of the State of West Virginia.

The warrant, which was based upon a complaint made by a woman who was not the mother, but the grandmother, of the illegitimate child, charged the defendant with an offense created by Section 1, Article 8, Chapter 48, Code, 1931, and is in this form:

'State of West Virginia, Cabell County, to-wit:

'To any officer or Constable of Kyle District, in said County:

'Whereas Elizabeth Fields of said County, this day made complaint and information on oath before me, C. Harold Kitchen, a Justice of the Peace in Kyle District, in said County, that Gilbert Epperly did commit [135 W.Va. 879] a misdemeanor in this that he, the said Gilbert Epperly on the 14th day of November, 1949 and ever since that time, in the said County, did without lawful excuse wilfully neglect to provide for the support and maintenance of his illegitimate child commonly known as and called Annabelle Fields, now over the age of three years but under the age of sixteen years, she, the said Annabelle Fields then and there, in the County aforesaid, being in destitute and necessitous circumstances;

Page 490

the paternity of the said child having been admitted by the said Gilbert Epperly before the said child attained the age of three years.

'Against the peace and dignity of the State.

'Therefore we command you in the name of the State of West Virginia, forthwith to apprehend the said Gilbert Epperly and bring him before me, at my office 736 Fourth Avenue, Kyle District, in said County, to answer the said complaint, and to be further dealt with in relation thereto, according to law.

'Given under my hand this 15th day of November, 1949.

'C. Harold Kitchen

'C. Harold Kitchen, Justice of the Peace.'

The complaint upon which the warrant was issued also states that the paternity of the child was admitted by the defendant before the child attained the age of three years.

The sole question for decision is whether a warrant which charges a parent with the offense of wilfully neglecting to provide for the support of his illegitimate child, under the age of sixteen years, in destitute and necessitous circumstances, created by Section 1, Article 8, Chapter 48, Code, 1931, is sufficient if based upon a complaint made by any person other than the mother of such child.

The defendant contends and the circuit court held, that the warrant in this case, having been issued upon a [135 W.Va. 880] complaint made by the grandmother, and not by the mother, of the illegitimate child, is fatally defective.

To sustain this contention the defendant invokes Section 1, Article 7, Chapter 48, Code, 1931, which deals with a bastardy proceeding. The pertinent parts of that statute are in these words: '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. * * * unless the child be three years old or upwards, the justice shall issue a warrant, directed to the sheriff of, or a constable in, any county where the accused may be, requiring him to be apprehended and taken before a justice of the county in which he may be found; * * *. 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 proceeding shall thereupon 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 the effect that the statute relating to a bastardy proceeding, incorporated in Article 7, Chapter 48, Code, 1931, and the statute dealing with desertion and nonsupport by a husband of his wife and by a parent of a child or children, incorporated in Article 8, Chapter 48, Code, 1931, as amended should be read and construed together, when the question of the paternity of an illegitimate child is involved in a prosecution for nonsupport of such child. The defendant asserts in effect that under the cases just cited, the quoted provisions of Section 1, Article 7, Chapter 48, Code, 1931, which as pointed out in Billingsley v. Clelland, 41 W.Va. 234, 23 S.E. 812, permit only the mother of the child to [135 W.Va. 881] institute a bastardy proceeding, when read together with the provisions of Section...

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290 practice notes
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 5. "This Court will use signed opinions when new points of law are announced and those points will be articulated through sylla......
  • Daily Gazette Co. v. DEVELOPMENT OFFICE, No. 25437.
    • United States
    • Supreme Court of West Virginia
    • May 19, 1999
    ...the legislative intent will not be interpreted by the courts but will be given full force and effect.' Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951)." Syl. pt. 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997). Accord Syl. pt. 5, in part, Walker v. West Virginia E......
  • State v. McGilton, No. 11–0410.
    • United States
    • Supreme Court of West Virginia
    • June 19, 2012
    ...the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syllabus Point 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997). 6. “A claim that double jeopardy has been viola......
  • State ex rel. City of Wheeling v. Renick, No. 12037
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...W.Va. 827, 83 S.E.2d 470; Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885; Harmer v. Boggess, 137 W.Va. 590, 73 S.E.2d 264; State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488; White v. Morton, 114 W.Va. 29, 171 S.E. 762; State v. Hoult, 113 W.Va. 587, 169 S.E. 241; State v. Reed, 107 W.Va. 563, 149 ......
  • Request a trial to view additional results
290 cases
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 5. "This Court will use signed opinions when new points of law are announced and those points will be articulated through sylla......
  • Daily Gazette Co. v. DEVELOPMENT OFFICE, No. 25437.
    • United States
    • Supreme Court of West Virginia
    • May 19, 1999
    ...the legislative intent will not be interpreted by the courts but will be given full force and effect.' Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951)." Syl. pt. 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997). Accord Syl. pt. 5, in part, Walker v. West Virginia E......
  • State v. McGilton, No. 11–0410.
    • United States
    • Supreme Court of West Virginia
    • June 19, 2012
    ...the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syllabus Point 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997). 6. “A claim that double jeopardy has been viola......
  • State ex rel. City of Wheeling v. Renick, No. 12037
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...W.Va. 827, 83 S.E.2d 470; Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885; Harmer v. Boggess, 137 W.Va. 590, 73 S.E.2d 264; State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488; White v. Morton, 114 W.Va. 29, 171 S.E. 762; State v. Hoult, 113 W.Va. 587, 169 S.E. 241; State v. Reed, 107 W.Va. 563, 149 ......
  • Request a trial to view additional results

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