149 S.E. 669 | W. Va. | 1929
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 *565 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 (1)-(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,
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 case of Goodright v. Moss, 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 mother, who is the offending party." This rule is generally recognized. The following statement of the same and the reason thereof are found in Mink v. State,
It is provided in section 16c (6) of chapter 144, Code, that no other or greater evidence shall be required to prove the marriage of such husband and wife, or that the defendant is the father or mother of such child or children, than is or shall be required to prove such facts in a civil action. The common law rule denying the right of a married woman to bastardize her children applies in civil actions. And since the effect of the said section of the statute is to apply the rules of evidence of civil cases in determining the paternity of a child under said statute, the said common law rule must be applied therein, save as modified by Code, chapter 80, section 1.
A further portion of said section 16c (6), reads: "In no prosecution under this act shall any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife apply, and both husband and wife shall be competent and compellable witnesses to testify against each other to any and all relevant matters, including the fact of such marriage, and the parentage of such child or children." There is not involved in this case the question of disclosure of confidential communications between husband and wife, nor is it a situation wherein one spouse is called upon to testify against the other. The proceeding is not against the husband or wife but a third party. It is therefore not apparent to us on what score this provision of the statute can have any possible application in this case, though the said provision is sought to be invoked on behalf of the state.
On the question of the possible physical inability of the husband of the prosecutrix to engage in sexual intercourse at the time when in the course of nature the child must have been begotten, the evidence is wholly inadequate. The sole evidence on that point is that of a physician who says that for a long time before the husband went to the sanitarium *568 he was absolutely stiff in the hips, and the witness doubts if during the last six or eight months before the husband went away he was capable of indulging in sexual intercourse. This evidence is in no sense conclusive. The requirement of the law is that in such circumstances the impotence of the husband must be clearly and fully established. Commonwealth v. Wentz, 1 Ashmead's Reports 269. 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. Mink v. State, supra.
A sister of the prosecutrix, as a witness for the state, testified that she heard the defendant admit that he was the father of the child, Charles Edward Cosby. The defendant may have made the statement thus imputed to him, but the paternity of the child is not thereby legally fastened upon him. In the very nature of things he did not know whether he was the father of the child or not. The most he could be warranted in saying would be that he had had sexual intercourse with the prosecutrix at about the time, when, in the course of nature, the child was begotten.
The attorney-general moved to dismiss this writ of error as improvidently awarded because the order of the circuit court of Raleigh County refusing a writ of error to the criminal court of said county, wherein this action was tried, predicated such refusal on a finding that the judgment of the trial court was "clearly right," and did not use the phrase "plainly right" as set forth in the legislative act creating said court. Acts 1907, chapter 29. Section 19 of said act provides that if the circuit court or judge thereof refuses a writ of error on the ground that the judgment is plainly right, and the order of rejection so states, application for writ of error may then be made to this Court or a judge thereof in vacation. The word "clearly" as used in the circuit court order is so nearly synonymous with "plainly" that we deem the variance wholly inconsequential.
For the reasons above set forth the judgment of the trial court is reversed, the verdict of the jury set aside and a new trial awarded.
Reversed and remanded. *569
