State v. Ernest Reed

Decision Date17 September 1929
Docket Number(No. 6108)
Citation107 W.Va. 563
CourtWest Virginia Supreme Court
PartiesState v. Ernest Reed

1. Bastards Statute Precluding Married Woman Accusing An other Than Husband of Paternity of Child Held Applicable to Prosecution for Willful Failure to Support Alleged Illegitimate Child (Code, c. 144, §§ 16c(l) to 16c(18); c. 80, § 1).

In a prosecution, under section 16c (1), chapter 144, Code, against a man for wilful failure to provide for the support and maintenance of his alleged illegitimate child, where he denies the paternity of such child, the mother being a married woman, there must be applied the provision of section 1 of chapter 80 of the Code, which precludes a married woman from accusing a person, other than her husband, of the paternity of her child unless she has lived separate and apart from husband for the period of one year or more immediately prior to the birth of the child. (p. 565).

2. STATUTES: Statutes Relating to Same Subject, Regardless of When Passed, Must be Construed Together.

Statutes relating to the same subject, whether passed at the same or different times, must be read and construed together. (p. 565).

3. Witness In Absence of Statute, Married Woman as In competent to Testify to Husband's Nonaccess, on Question of Legitimacy of her Child.

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. (p. 566).

4. Bastards As Respects Legitimacy of Child of Married Woman, Husband's Nonaccess Must be Clearly Proved. On the question of the legitimacy of the child of a married woman, the non-access of her husband whether from separation or impotency must be clearly and satisfactorily proved. (p. 567).

Error to Circuit Court, Raleigh County. Ernest Reed was convicted of failing to support and maintain his illegitimate child, and he brings error.

Reversed and remanded.

Brown W. Payne, for plaintiff in error. Howard B. Lee, Attorney General, and W. Elliott Nefflen, Assistant Attorney General, for the State.

Maxwell, Judge:

Defendant prosecutes this writ of error to a conviction on indictment under section 16c (1), chapter 144, Code, charging him with failure to support and maintain his illegitimate child, Charles Edward Cosby. At the time of the birth of this child in August or September, 1926, the child's mother, Susie Cosby, was the wife of Robert Cosby, who went from their home in Raleigh County to a sanitarium late in December, 1925, for treatment for tuberculosis, where he remained continuously until his death about the time of the birth of the child. The mother admits that she and her husband resided together as husband and wife down to the time that he went to the sanitarium, but says that she had not had sexual intercourse with him for a period of about four years prior to the time of the trial in April, 1928. The prosecutrix further testified that the defendant is the father of the child. He plead not guilty. His assignment of error that the court refused to file his two special pleas denying the right of the prosecutrix, a married woman, to bastardize her child which was born within a year of the time when she was admittedly living with her husband, is not well taken because the defendant was permitted to raise the same question under the general issue plea. He therefore suffered no prejudice on that score.

In a prosecution of this sort, where the paternity of the child is not admitted, there are involved two propositions, first, whether the defendant is the father of the alleged illegitimate child, and second, whether he has failed to provide support and maintenance for such child, it being in necessitous circumstances. Consideration of the second proposition cannot arise in the absence of competent testimony tending to establish the first, that is, that the defendant is the father of the child.

The statute under which this case is prosecuted, sections 16c (l)-(8), chapter 144, Code, was first made to apply to illegitimate children by the amendment and re-enactment of the Legislature of 1917. See Acts 1917, chapter 51. And insofar as the said statute applies to illegitimate children it must be considered as corollary to, and furnishing additional relief to that furnished by, the bastardy statute, Code, chapter 80, which has been in force for many years. State v. Bennett, 90 W. Va 477. The two statutes should be read together. "Statutes relating to the same subject, whether passed at the same or different times, must be read and construed together." Hays v. Harris, 73 W. Va. 17. See also, State v. Bennett, supra; State v. Snyder, 64 W. Va. 659; Piedmont Finance Corp. v. Commonwealth, (Va,) 135 S. E. 673; 2 Lewis' Sutherland Statutory Construction, section 443. It is provided in section 1 of chapter 80 of the Code, that a married woman who has been living separate and apart from her husband for the space of one year or more, and shall not at any time during such separation, have co-habited with her husband, may, if she be delivered of a child at, any time after the said one year, and while such separation continues, accuse any person, other than her husband, of being the father of such child. This very wholesome provision of the law as to the necessary lapse of time in such cases must be read into the later statute in connection with the primary inquiry, namely, as to whether the defendant is the father of the alleged illegitimate child. The prosecutrix says that the child was born the 30th day of September, 1926; the attending physician's certificate shows August 17, 1926. In either event, the date of the birth of the child was well within one year of the time when it is admitted by the prosecutrix that she and her husband were living together as husband and wife. She therefore comes within the inhibition of one year which is placed by the statute upon a married woman who seeks to bastardize her child.

This statutary inhibition of one year which is placed on a married woman who seeks to charge the paternity of her child to a person other than her husband does not involve any new or startling principle of law. It is merely a modification of a clear and well settled principle of the common law. This rule was recognized and applied by Lord Mansfield in 1777 in the ease of Goodright v. Mass, 2 Cowp. 591, 98 Eng. Reprints, 1257: "As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious; more especially the...

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  • Gardner v. Gardner, 10900
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    • West Virginia Supreme Court
    • October 6, 1959
    ...50 S.E.2d 476, 478; Code, 1931, 56-6-37. In any event, there is in such a situation a strong presumption of legitimacy. State v. Reed, 107 W.Va. 563, 149 S.E. 669. 'On grounds of public policy, neither husband nor wife, living together as such when a child is conceived, is competent to test......
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    ...the same subject matter and must be read and considered in pari materia. State v. Hoult, 113 W.Va. 587, 169 S.E. 241; State v. Reed, 107 W.Va. 563, 149 S.E. 669; Hays v. Harris, 73 W.Va. 17, 80 S.E. 827. See State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488; Algoma Coal & Coke Co. v. Alexander......
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