I regret my failure to be in accord with the views expressed in the majority opinion.
Code, 48-8-1, together with that part of Code, 48-7-1, to be read with it, is a penal statute to be strictly construed.Hall v. Norfolk W. R. Co., 44 W. Va. 36, 28 S.E. 754, 41 L.R.A. 669, 67 Am. St. Rep. 757; Diddle v. Continental CasualtyCo., 65 W. Va. 170, 63 S.E. 962, 22 L.R.A. (N.S.) 779. As to the nature and purpose of Code. 48-8-1, see also, Clifton v.Clifton, 83 W. Va. 149, 152, 98 S.E. 72; and Davis v.Prunty, 114 W. Va. 285, 286, 171 S.E. 644. It is to be supposed that the opinions of this Court in the cases of State v. Reed,107 W. Va. 563, 149 S.E. 669, and State v. Hoult, 113 W. Va. 587,169 S.E. 241, cited in the majority opinion, were both based upon this principle. To my mind this opinion should follow the same rule of construction.
It is settled that Code, 48-8-1, should be read together *Page 209 with Code, 48-7-1, in so far as the first section relates to illegitimate children. The latter section provides "* * * unless the child be three years old or upward * * *", a warrant shall be issued for the person accused of its paternity. Immediately preceding the quoted language from the opinion in the Hoult case found in the principal opinion is the following language: "In placing in the bastardy statute a three year limitation the Legislature recognized the great opportunities for fraud and imposition that would attend upon the leaving open of such matters for an indefinite period. With equal forcefulness the same reasons are applicable to the non-support statute when effort is made to fasten upon a man the paternity of an illegitimate child. The limitation fixed in the bastardy statute must be deemed applicable to non-support as well." The legislature evidently supposed that three years is a long enough period to accord to the mother of an illegitimate child the opportunity to prevent imposition, and that thereafter evidence supporting a denial of paternity would be practically impossible to produce.
I do not grasp the unconscionable consequence of limiting a person who is well enough advised to proceed under a criminal statute to a three year period in which to do so, or to adjust the difficulty by a lump sum settlement, an enforceable contractual obligation or even by marriage with the reputed father, and by one of these means bring the regrettable situation to rest.
Of course, if paternity were admitted by the accused during the course of the proceeding, the three-year limitation enacted to prevent fraud, perjury, blackmail, and what not, of persons accused of an illegitimate paternity would plainly be unnecessary. I think that this was the meaning of the Court in the Hoult opinion by saying that if the accused was to be amendable to punishment for failure to maintain an illegitimate child under sixteen years of age if paternity is admitted orhas been judicially determined in a proceeding instituted within three years after the child's birth. I do not agree *Page 210 that this would constitute a narrow construction of the language of that opinion. But if it would, it strikes me that it is defeating the purpose of a strict construction to hold that an opinion construing a penal statute is to be liberally construed. Vicious circles should be avoided, and one's method of reasoning should not be altered until a conclusion has been reached. Why construe a penal statute strictly if the opinion applying a strict construction is thereafter to be liberally construed?
It is perfectly apparent that the legislature in enacting both of the sections under consideration has extended liberality very far for the relief of illegitimate children and for the punishment of those guilty of their paternity. As is said in the Hoult case, a non-support proceeding is a criminal prosecution in which, owing to a statutory provision, proof beyond a reasonable doubt is not required and a preponderance of the evidence is sufficient. This liberality was for the legislature to exercise, but it emphasizes the importance of adhering to the rule that a penal statute is subject to a strict construction when the accused is before the court.
For the foregoing reasons, I concur in the result but do not believe that this Court should hold that even a verbal admission of paternity during the three-year period may be shown after an illegitimate child is three years old, and when shown to the satisfaction of a jury is sufficient to warrant a conviction at any time before the illegitimate child reaches the age of sixteen.