22 S.E.2d 537 | W. Va. | 1942
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 $8.00 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? InState v. Hoult,
"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 case, this 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 parimateria, and that the limitation contained in the bastardy statute may be asserted by special plea. In the Mills case this 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. *780
The warrant in this proceeding does not set forth the age of the alleged illegitimate child at the time of its issuance. Shall the rule of the Mills case obtain herein? The conclusions reached by the Court in the two cases discussed resulted from construing the nonsupport statute in conjunction with the bastardy statute, a construction approved in State v. Reed,
We recognize that a proceeding under the bastardy statute has been classed as civil in its nature (Bratt v. Cornwell,
We are aware that defendant did not in the trial court challenge the sufficiency of the warrant by motion to quash, demurrer or motion in arrest of judgment, although there was a motion to quash overruled by the justice of peace. InState v. McGinnis,
Because we have held the warrant insufficient, discussion of the evidence and other assignments of error are unnecessary.
We reverse the judgment, set aside the verdict, and remand the case with directions to dismiss the warrant.
Reversed and remanded.