State v. Richmond

• Decision Date: 27 October 1942
• Docket Number: 9321.
• Citation: 22 S.E.2d 537,124 W.Va. 777
• Parties: STATE v. RICHMOND.
• Court: West Virginia Supreme Court

22 S.E.2d 537

124 W.Va. 777

STATE v. RICHMOND.

No. 9321.

Supreme Court of Appeals of West Virginia.

October 27, 1942

Martin Brown, of Moundsville, for plaintiff in error.

William S. Wysong, Atty. Gen., and Kenneth E. Hines, Asst. Atty Gen., for defendant in error.

RILEY Judge.

Upon complaint of Bertha Coburn, a warrant was issued by a justice of peace, charging defendant, Fred Richmond, with the unlawful desertion and wilful neglect and refusal "to provide for the support and maintenance of his illegitimate child, Frederick Eugene, under the age of sixteen years and in destitute and necessitous circumstances."Defendant pleaded not guilty, and, upon hearing, the justice found "defendant guilty as charged".Upon appeal to the Circuit Court of Marshall County, a jury likewise found defendant guilty, and he now prosecutes error to the judgment of that court which requires him to pay $8 monthly to Bertha Coburn, mother of the child, until it reaches the age of sixteen years.

In this proceeding the warrant is in the language of Code 48-8-1.Does this suffice to charge defendant with the misdemeanor which the nonsupport statute contemplates?In State v. Hoult,113 W.Va. 587, 169 S.E. 241defendant was charged similarly, except that the warrant specifically alleged that the child was four years of age.As shown by the printed record, defendant moved to quash the warrant and offered for filing a plea of the statute of limitations, predicated upon Code, 48-7-1, which, in effect provides that a bastardy proceeding may not be instituted after the child has become three years of age.The trial court rejected both the motion to quash and the plea, and, upon review here, this Court's reversal was based solely upon the proposition that prosecution was barred "by the three-year limitation of the bastardy statute".While the sufficiency of the warrant was one of the issues involved in the Hoult case, the opinion is silent of any consideration thereof.The question of the sufficiency of a warrant under the nonsupport statute was again presented in State v. Mills,121 W.Va. 205, 2 S.E.2d 278, 279, wherein the allegations were substantially identical with those in the warrant in the Hoult case.The child for whom support was sought was three years of age, and, as in the former case, the warrant alleged the child's age.The warrant was condemned, and syllabus point 2, reads as follows: "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."

The opinion in the Mills case discusses, and in part relies upon, the Hoult decision.If in the Hoult casethis Court had passed upon the motion to quash the warrant and applied the holding which it later pronounced in the Mills case, the motion would have been sustained, but the Court, as then constituted, preferred not to consider the question arising upon said motion and based its decision, as shown by the opinion, upon the defendant's right to assert as a defensive matter the limitation contained in the bastardy statute.That case simply holds that the two statutes should be considered in pari materia, and that the limitation contained in the bastardy statute may be asserted by special plea.In the Mills casethis Court, on a motion to quash the warrant, required affirmative allegations in the warrant that the "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".Whether the Hoult decision is inconsistent with that in the Mills case need not now be decided, because we are committed to the rule enunciated in the Mills case.

The warrant...