Swisher v. Malone

• Decision Date: 15 September 1888
• Parties: SWISHER v. MALONE.
• Court: West Virginia Supreme Court

7 S.E. 439

31 W.Va. 442

SWISHER v. MALONE.

Supreme Court of Appeals of West Virginia.

September 15, 1888

Submitted June 26, 1888.

Syllabus by the Court.

In a prosecution for bastardy against the putative father of a bastard child, under the provisions of chapter 80 of the Code, the character of the complainant for chastity is not involved in the issue. ^[1]

Upon the trial in such a proceeding the defendant will not be permitted to introduce evidence to prove that the complainant has at any time had carnal connection with other men, unless such connection has occurred within such a period before the commencement of her gestation that it is possible that one of such other persons may have been the father of the child. ^[1]

If upon such trial the complainant upon the witness stand, in her examination in chief or upon cross-examination, has testified that she has never had connection with any man other than the defendant, he cannot, for the purpose of impeaching her testi mony, or of showing that he is not the father of the child, introduce testimony tending to show that she has had such carnal connection with other men, unless it has occurred so near the commencement of her gestation that some person other than the defendant may be the father of the child. ^[1]

A motion to set aside a verdict and award a new trial, founded upon an affidavit of newly-discovered evidence, which fails to show the character, relevancy, and materiality thereof will be overruled, under the rule established by this court in the fifth point of the syllabus in Betsall's Case, 11 W.Va. 703, which is reaffirmed in this case.

Error to circuit court, Marion county.

Lee P Watson, for plaintiff in error.

Atty Gen. Caldwell, for defendant in error.

WOODS J.

This proceeding was founded upon a warrant for bastardy issued on the 11th of December, 1882, upon the complaint of Louisa J Swisher, by a justice of the peace of Marion county, accusing Lee L. Malone with being the father of a male bastard child of which she was delivered in said county on the 20th day of November, 1882. Having entered into the recognizance required by law, the defendant appeared at the next term of the circuit court of said county, and pleaded "not guilty." The issue upon this plea was afterwards, on the 6th of December, 1883, tried by a jury, who returned the following verdict: "We, the jury, find the defendant guilty." The defendant moved the court in arrest of judgment, and to set aside the verdict and award him a new trial, and filed in partial support of said motion for a new trial the following affidavit: "This day came Lee L. Malone, and upon his oath says that he is the defendant in the above-entitled action, and that the jury empaneled therein did on the ___ day of December, 1883, in the circuit court of Marion county, render a verdict finding him guilty of the paternity of the bastard child of which the plaintiff was heretofore delivered. Affiant says that since the trial aforesaid of the cause aforesaid he has discovered new evidence such as that by no degree of d iligence could have been secured at the former trial; that said evidence is material, and such as ought to produce upon another trial a verdict different from the said verdict hereinbefore rendered upon the merits. Affiant says that he has discovered sufficient unimpeachable evidence to show that no spelling-school was held at the Watson school-house on the night of February 10, 1882, as proved upon said trial, and upon which proof, together with proof that this affiant was then and there at said school-house, the said plaintiff recovered said verdict, but that said spelling-school was held upon the ___ day of ___, 18--, and that affiant was not then at said school as aforesaid. Affiant also has discovered new evidence proving that the said plaintiff did not live in said Marion county for one year next preceding the date of the birth of her said child or of her accusation of affiant's paternity thereof before the justice. And this affiant says that at the said trial of said cause it was not proved that the child of which said plaintiff has been delivered was born in said county of Marion aforesaid. L. L. MALONE. Subscribed and sworn to before me this 20th day of December, 1883. CLARENCE L. SMITH, Clerk." These several motions the court overruled, and entered judgment upon the verdict, that the defendant pay to the county court of Marion county, for the maintenance of the child, $50 a year for each year, payable at the end of the year, from the 11th of December, 1882, to the 20th day of November, 1889, unless it sooner die, and that said defendant shall give bond in the penalty of $700, with such sureties as may be deemed sufficient by the court for the performance of this order, and that the plaintiff, Louisa J. Swisher, recover from the defendant, Lee L. Malone, the costs by her in her prosecution expended. During the trial the defendant excepted to certain rulings of the court, which were saved to him by his four bills of exceptions numbered, respectively, 1, 2, 3, and 4, which set out the grounds of error complained of by the defendant in his assignment of errors. To this judgment a writ of error has been allowed. The errors complained of in the defendant's first, second, and fourth bills of exceptions may be considered together. The first bill states that after the plaintiff had introduced evidence tending to show that the defendant was the father of the bastard child of which she was delivered on the 20th day of November, 1882, the defendant offered evidence tending to show that the general character of the plaintiff for chastity is bad, and for a long time before the conception and birth of said child was bad, which testimony so offered by the defendant the court rejected. The second bill of exceptions stated that after the plaintiff had introduced the evidence in the first bill of exceptions, and herself had testified in answer to questions propounded to her on cross-examination, that she had never carnally known any man other than the defendant. The said defendant offered to contradict her by proving numerous acts of carnal intercourse between her and numerous other persons, occurring frequently during a period of three years before the birth of said child, but not within such period of time as from such intercourse said child could have been begotten, which testimony so offered the court rejected. The fourth bill of exceptions sets out that after the plaintiff had testified on cross-examination that she had not had carnal connection with any other man than said defendant, he proposed to contradict her by proving numerous acts of carnal intercourse between her and numerous other persons. To the introduction of this testimony the complainant by counsel objected, unless from the time of such connection it might be possible that by such connection some such third party might be the father of the child of which she was delivered, and the court sustained said objection with said qualification.

This case presents for our consideration two important questions First, whether, in a prosecution for bastardy under our statute, the character of the complainant for chastity is involved in the issue? Second, whether, for the purpose of impeaching her credibility as a witness by cross-examination or otherwise, or of showing that he is not the father of the child, it is competent for the defendant to introduce evidence to prove that she has at any time had carnal connection with other men, unless such connection has occurred within such period before the commencement of her gestation as to render it possible that some one of such other men may have been the father of the child? The prosecution provided by chapter 80 of the Code to charge the putative father with the support of his illegitimate child is in no sense a criminal prosecution, nor does it pretend to impose upon the accused any punishment for his unlawful act. Its only purpose is to prevent the illegitimate child from becoming a county charge, by compelling the father to bear the burden of its maintenance and support in its tender infancy, which would otherwise in many instances fall upon the public. The proceedings under the Code to effectuate this purpose are simple and summary. The party accused is arrested upon a warrant issued by a justice, founded upon the examination of the woman under oath, taken before a justice, and there recognized with sufficient surety to appear at the next term of the circuit court of the proper county, to answer said charge, and to abide by and perform the order of the court in relation thereto. Upon pleading "not guilty," the issue thereon is tried by a jury, if not waived by the parties, and, if the defendant is found guilty, it is the duty of the court to order him to pay to the county court, for the maintenance of the child, such sums as it may deem proper for each year until such time as the court may appoint, unless it sooner die; and shall order the father to give bond in such penalty and with such sureties as it may deem sufficient for the performance of such order; and shall order him to jail until such bond be given in the court or filed in the clerk's office, with sufficient sureties, to be approved by the court or the clerk. Chapter 80, § 4, Code. It will thus be perceived that no question of damages, fine, or...