State v. Mills, 8837.

Citation2 S.E.2d. 278
Decision Date23 March 1939
Docket NumberNo. 8837.,8837.
CourtSupreme Court of West Virginia
PartiesSTATE. v. MILLS.

2 S.E.2d. 278

STATE.
v.
MILLS.

No. 8837.

Supreme Court of Appeals of West Virginia.

March 23, 1939.


Syllabus by the Court.

1. 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-

[2 S.E.2d. 279]

support proceeding instituted within three years after the child's birth.

2. 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.

KENNA, J., dissenting in part.

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.

Thomas H. West, of Huntington, for plaintiff in error.

Clarence W. Meadows, Atty. Gen., and K. E. Hines, Asst. Atty. Gen., 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...

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