dissenting:
Very respectfully I dissent from that portion of' the opinion which is summarized in the third point of the syllabus and which holds that the husband and the wife are disqualified in this case to testify that they did not cohabit with each other during a period of one year or more preceding the birth of the child.
This is a case of first impression. This Court has never heretofore, to my knowledge, held that such disqualification obtains in a bastardy proceeding prosecuted by a married woman in full conformity with the provisions of Code, 1931, 48-7-1, which provides for such prosecution. State v. Reed, 107 W. Va. 563, 149 S. E. 669, from which the third point of the syllabus in the instant case was taken, was reversed because the mother admitted that she and her husband had not been living separate and apart for a year or longer prior to the date of the birth of the child. She testified that she and her husband had not engaged in sexual intercourse for about four years prior to the trial. As I understand the opinion, it implies that she would have been a competent witness on the issue of nonaccess if she and her husband had lived separate and apart for one year or longer prior to the date of the birth of the child. The Court referred to the statute permitting a married woman to prosecute a bastardy proceeding as a “modification” of the common law; and stated that the common law rule of disqualification must be applied “save as modified by” the statute.
*815I believe that the common law disqualification has, by statute, been made inapplicable to a case such as this; and that, in any event, the effect of the statute is to take away the reason for the rule when applied to a case such as this.
Two separate legal principles have a certain pertinency in this case. One is the presumption of legitimacy which obtains whether the husband and wife are permitted to testify or not. This presumption was once practically conclusive. It is now regarded as rebuttable. Wigmore on Evidence, Vol. IX, Section 2527, page 448; The Law of Evidence in Virginia and West Virginia, Section 240, page 418; Jones on Evidence (5th Ed.), Vol. 1, Section 101, page 176; 10 C.J.S., Bastards, Section 3b, page 18; 7 Am. Jur., Bastards, Section 14, page 636. While the presumption is rebuttable, “the non-access of her husband whether from separation or impotency must be clearly and satisfactorily proved.” State v. Reed, 107 W. Va. 563, pt. 4 syl., 149 S. E. 669.
The rule of disqualification has been stated by this Court in a restricted way which would not disqualify the husband or wife in the circumstances of this case. That rule, I believe, has been carefully stated by this Court in such a way as to be in harmony with the qualification of both husband and wife to testify to nonaccess in a case such as this prosecuted under the statute which gives to a married woman the right, in the restricted circumstances therein defned, to accuse one other than her husband of being the father of a child born to her during wedlock. “On grounds of public policy, neither husband nor wife, living together as such when a child is conceived, is competent to testify that a child born to them within the period of gestation following such conception is illegitimate.” (Italics supplied). Ohlinger v. Roush, 119 W. Va. 272, pt. 1 syl., 193 S. E. 328. See also Gardner v. Gardner, 144 W. Va. 630, 636, 110 S. E. 2d 495, 499.
We are concerned here with the wisdom and necessity of perpetuating and applying in the circumstances of this case a rule which had its genesis in an obiter dictum utterance in an ejectment case almost two centuries ago, a rule which, according to eminent authority, is devoid of logic and had *816no precedent for its justification. For many years the distinct trend has been to remove disqualification of witnesses in the interest of the unhampered ascertainment of truth. The rule disqualifies the husband and wife to testify merely as to nonaccess. The wife, for instance, may testify concerning her acts of intercourse had with one other than her husband, even though the necessary effect is to prove illegitimacy. Jones on Evidence (5th Ed.), Vol. 3, Section 799, pages 1497-99; Ohlinger v. Roush, 119 W. Va. 272, 193 S. E. 328.
Wigmore on Evidence (3rd Ed.), Volume VII, Section 2064, pages 368-71, contains the following analysis and criticism of the rule:
“ (1) There is an indecency: we are told. And yet, in nine cases out of ten, the sole question that the wife is asked is (for example) whether her husband was in St. Louis from 1929 to 1933 during the time that she was in New York. Is this indecent? Moreover, the very next question may be whether during that time she lived with the alleged adulterer; and this (by general concession) is indubitably allowable. In every sort of action whatever, a wife may testify to adultery or a single woman to illicit intercourse; yet the one fact singled out as ‘indecent’ is the fact of non-access on the part of a husband. Such an inconsistency is obviously untenable.
“ (2) There is an immorality and a scandal, we are told, in allowing married parents to bastardize their children. And yet they may lawfully commit this same immorality by any sort of testimony whatever, except to the fact of non-access. They may testify that there was no marriage-ceremony, or that the child was born before marriage, or that the one party was already married to a third person, or their hearsay declarations (after death) to illegitimacy in general may be used. In all these other ways they may lawfully do the mean act of helping to bastardize their own children. Where is the consistency here? Of what value is this conjuring phrase about ‘bastardizing the issue,’ if it will not do the trick more than once in a dozen times? Moreover, what shall be said of a system *817of law which, while thus rebuking parents who come to prove their children bastards, at the same time by its own inhuman prohibition (unique among civilized peoples) had refused absolutely to allow those parents, by any means whatever, to remove afterwards (by legitimation) the consequences of their original error and to give to their innocent children the sanction of lawful birth, — a refusal which is still maintained in some of our jurisdictions? That the same law which harshly fixes the stain of bastardy as perpetually indelible should censure parents for the abomination of testifying to that bastardy is preposterous.
“The truth is that these high-sounding ‘decencies’ and ‘moralities’ are mere Pharisaical afterthoughts, invented to explain a rule otherwise incomprehensible, and lacking support in the established facts and policies of our law. There never was any true precedent for the rule; and there is just as little reason of policy to maintain it.”
Whatever basis there may be for the common law rule, that basis is fully preserved by our statute which provides, in effect, that a woman may not bastardize her child unless she and her husband shall have lived separate and apart for a year or more before the child is born. Subject to that qualification, the statute in clear language gives the married woman a right and the same remedy as if she were unmarried.
Code, 48-7-1, provides that a wife, in the limited circumstances defined therein, may “accuse any person, other than her husband, of being the father of such child, in like manner., and the same proceedings shall thereupon he had, as if she were an unmarried woman.” (Italics supplied). We should bear in mind that the statute creates a new right and provides a remedy where none existed before in favor of a married woman. How can we justify a holding which reads into the statute a limitation on or qualification of the right and remedy thus created which is not expressed in the statute itself? Is it reasonable to assume that the legislature intended to give a right with a remedy so harshly curtailed as to amount almost to a denial thereof? As a part of her *818case, the married woman must prove absence of sexual relations with her husband during the year preceding the birth of the child. Must we conclude that the legislature in creating the right intended to forbid the testimony of the only two people on earth who are likely to have any knowledge in relation to that essential element of the remedy? Could we expect the legislative intent to be plainer than that expressed in the words, “and the same proceedings shall thereupon be had, as if she were an unmarried woman”?
Not only do I believe that the majority opinion has disregarded the plain language of the statute and read into it a restriction which the legislature easily could have but did not express, but I believe also that because of the statute, the reason for the common law rule of disqualification is absent. Under both the bastardy statute (Code, 48-7-1) and the nonsupport statute (Code, 48-8-2), a wife may go before a justice of the peace and, by a writing under oath, charge that a man other than her husband is the father of her child. That writing under oath, as I understand, becomes a public record. If she can state these things in a court in a writing under oath, what reason or policy could forbid that a similar statement under oath be made orally in another court? Her written statement under oath will be present in that court, likely before the jury; but, though she be present, the majority opinion holds that she cannot make a similar statement before the court and the jury in the form of oral testimony.
I believe the reason or basis for the rule loses its force when applied to a husband and wife who have lived separate and apart for a year or longer prior to the date of the birth of the child, and after the wife has made a statement under oath in writing in which she charges all the essentials of her case, including nonaccess. “Under the common law, when the reason for a rule ceases, the rule itself ceases.” Currence v. Ralphsnyder, 108 W. Va. 194, pt. 4 syl., 151 S. E. 700. See also Cook v. Citizens’ Insurance Co., 105 W. Va. 375, 379, 143 S. E. 113, 115.
For reasons stated, I would affirm the judgment, of the Circuit Court of Boone County.