Supreme Court of

IN THE,

Supreme Court of ~peals of Virginia AT .. RICHMOND._

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Record:·-N.c; .• · 5338 -.- I·

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VlRGINIA: .... . . . " . .

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- . ·. ':A~N~_ 'FRANCE·s_ JON:lll$·. lk.O!WE~ . . . '~

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2 Supreme Court of Appeals of Virgini!a

RECORD

• • • • •

page 4-A ~ VIRGINIA:

In the Juvenile and Domestic Relations Court of Orange County

Re : Michael Daniel Jones

ORDER.

Whereas, on the 18th day of February, 1960, the abovenamed Michael Daniel Jones, a white child or minor four years of age, born July 28th 1955, was brought before me Robert C. Grady, Judge of the Juvenile & Domestic Relations Court of Orange County, Virginia, upon a petition in writing verified by the oath of Ruth C. Potts, Superintendent of the Orange County Department of Public Welfare, alleging tha.t the said Michael Daniel Jones is dependent and neglected and in need of. proper parental care; and

Wbereas, the provisions of the Juvenile & Domestic Relations Court law of 1950, or amendements thereto, have been duly complied with in assuming jurisdiction of the said child or minor; and

Whereas, it appears unto the Court that Ruth C. Potts, Superintendent of the Orange County De'partment of Public Welfare, was present. at the said hearing but that Anna Franees Wood Jones, mother of the said Michael Daniel Jones, did not appear after receiving official notice of the time of the hearing.

N o'\\r, therefore, the Court having heard the evidence sub.mitted upon the petition and being of the opinion that the said Michael Daniel Jones is dependent and neglected·· and without proper· parenta·l care as alleged and that the welfare and-~est interests uf the said child ot• minor require that the state. should as,sume· his. gqardianship, doth so adjudicate . and doth·order.·thatthe ·said Mich!ael Daniel Jones be permanently committed to the said Orange County Department of Public Welfare to be received, de_tained and m~iJ.naged in the. manner

\pre$~ribed by la'Y .. Th. e said Orange t.l. J)unf:Y Dep~r~. e.n_t. o_f Pubhc Welfare _ lS also granted full adoption pnVilege_s· ~of the_ saiq :MichaJ~1 Daniel Jones.

I ,,

.. A:una Frances Jones Lowe v. Taylor P. Grasty 3

Given under my hand this 18th day of February, 1960.

ROBERT C. GRADY, Judge. Juvenile & Domestic Relations Cour.t of Orange County, Virginia.

page 4-B ~ STATE OF VIRGINIA:

In the Circuit Court of Orange County .

• • • • • FINAL ORDER.

In Re 1\Hchael Daniel Jones

This matter came on to be heard on the 4th day of April, 1960 upon the petition of Ruth C. Potts, Superintendent of the Orange County Department of Public Welfare, duly served upon Anna Frances Jones, the sole surviving parent of Michael Daniel Jones, and on appeal by the said Anna Frances Jones from an order entered by the Orange County Court, and the rna tter was heard ore tenus by this Court, both Michael Daniel Jones, a minor child four ( 4) years of age, and Anna Frances .Jones, the sole· surviving parent, being present in person in the courtroom at all times, and it appearing to the court from the evidence taken ore tenus that the father of the said MichaelDaniel Jones, namely Reginald Jones, Sr., is deceased, leaving the mother of the child, Anne Frances Jones, as the sole surviving parent, that all parties having an interest in the matter have been properly brought before this Court, that the said Michael Daniel Jones is residing in the County of Orange, and that this Court has jurisdiction· to determine the matters brought before the Court- in the said petition, and it further appearing· to-· -the Court that the said Michael Daniel Jones -is .dependent-, neglected, and. 'vithout proper ·parental care, .and that -his·condition and situation are such that his welfare demands··adjudication ·as to his disposition, qontrol and custody, and that. the best interest of the s~id. Michael Da~iel Jones will be served bv committing him to the custody and control of the Orange 'Co11nty Board of Public Welfare and its welfare ag·ency, with

full power and authority to place the said child for page, 4-C } adoption as provided for in tbe statute law of ·the

Common:wealth. of Virginia; the Cpurt doth ·a~ cordingly ORDER and DIRECT that the s·aid Mjchael Dani¢1

4 Supretne Court of Appeals of Virginia

,Jones, a n1inor child four ( 4) years of age, be and he is hereby committed to the custody and control of the Orange County Board of Public V\Telfare and its agency, and the said Orange County Bo.ard of Public Welf~are is given full power and authority to place the said child for adoption in accordance with tl1e statute law of the Commonwealth of Virginia, and the parental rights of Anna Fvances Jones in Michael Daniel .Jones are herebv ternlinated.

All matters ii1 connection with this suit having been cone] uded the san1e is ordered stricken from the docket of this Court.

Enter: C. CHAMPION BOWLES, .Judge Date: 4/5/60

• • • • • page 26 ~ FINAL ORDER.

Upon the Petition for a Writ of Habeas Corpus filed hy the Petitioner on August 15, 1960, seeking the release of Michael Daniel ,Jones from the custody of the Defendants, upon the vVrit of Habeas Corpus ad subjiciendum issued by the Court on August 17, 1960, directing the Defendants to have ~fichael Daniel Jones before the Court on the 2nd day of September, 1960, at 10:00 a.m. and the service of the Petition and "\Vrit.

,,I'""'} on the Defendants, upon the Defendants' joint answer fHed fl~fr-· on ... t\..ugust 25, 1960, came the Petitioner and Defendants in

proper person and by Counsel before t.he Court on Septem-1 (.I ber, 2, 1960, and botl1 parties by Counsel announced that tl1ey

(lJt{ { were ready to proceed. Thereupon, the Court heard the evidence for the Petitioner,

at the conclusion of which and without hearing argument of Counsel, the Court ruled that there was no merit to the Petiiio_ner's several allegations in the Petition, tB.at t&9 Q¥~ c1eBee :iUs9:at9Q 'by tll9 P"titioPor i"R 9PQ"R Qg;art £ailee te' el1ew t~at tlt9 g~QPg'Q in the PeHHot~Qr's Guita'bility as a P,8:1!9Ri haQ. QO"Rti.Pued for a sufficient time to satisfy tbo C9U»t tllat it is ~QPH1QB9R1i~ and that the Writ of Habeas Corpus should be denied and the Petition dismissed, to which findings the Petitioner duly excepted.

Whereupon, the Petitioner by Counsel moved the Court to continue the case until the November Term of

page 27 ~ Court, 1960, 'vith leave for the Petitioner at that time to introduce additional evidence as to the

Anna Frances Jones Lo,ve v. Taylor P. Grasty 5

permanency of her rehabilitation and reformation, which motion the Court denied, to which ruling the Petitioner excepted.

Now, Therefore, in· accordance with the conclusions, and ruling afore set forth, it is hereby ~ordered tha.t the· Writ of Habeas Corpus be, and the same hereby is denied and the Petition is hereby dismissed and the Petitioner's exceptions thereto are du1y noted.

Enter: C. CHiliPION BOWLES, Judge.

Date: 9j28j60.

Petitioner excepts to action of the Court in deleting that portion of the Order tendered by Counsel that has been stricken.

We ask for this-

page 28 ~

• • •

VANCE ~L FRY, Attorney for Petitioner.

SOMERVILLE & 1\fOORE, Counsel for Defendant.

• • NOTICE OF APPEAL AND ASSIGNMENTS OF ERROR.

In accordance with Section 4 of Rule 5 :1 of the Rules of the Supreme Court of Appeals of Virginia, notice is hereby given that Anna Frances Jones Lowe, the Petitioner herein, will appeal to the Supreme Court of Appeals of Virginia,

=from the Final Order of the Circuit Court of Orange County, .. Virgi~ia, entered in this cause on September 28, 1960~

ASSIGNMENTS OF ERROR.

1. The Trial Court erred in finding that it was not to the best interest of the infant Michael Daniel Jones that his custody be awarded to Anna Frances Jones Lowe.

2. The Trial Court erred in its finding that the proceedings awarding custody to the Welfare Department were valid and le2"al.

3. The Trial Court erred in refusing to grant a continu-

6 Supreme Court of Appeals of Virginia

Anna. Frances Jones Lowe.

ance in order for the Petitioner to demonstrate that her rehabilitation is permanent.

ANNA FRANCES JONES LOWE. By: HIGGINBOTHAM & FRY,

Counsel. By V ANOE ~L FRY.

Circuit Court of Orange County, Virginia

Filed October 7, 1960

EVELYN W. UTZ, Dep. Clerk.

• • • • • page 22}

ANNA FRANCES JONES LOWE, a witness in her own behalf, being first duly sworn, was examined and testified as follows :

DIRECT EXAMINATION.

By Mr. Fry: Q. You are Mrs. Anna Frances Jones Lowe A. Yes, sir. Q. You were formerly Mrs. Anne Frances Jones, were you

notY A. Yes, sir. Q. And you are the mother of Michael Daniel Jones f A. Yes, sir. Q. When and where was Michael born? A. Michael was born in Louisa County Hospital, July 5,

1955-I mean July 28, 1955. Q. At that time you were married to whom 7

,~.. A. At that time I wasn't quite legally married.

By the Court: · Q. What was that 7 A. I wasn't legally married. Q. At that time he was born 7 A. Yes, sir.

Anna Frances Jones Lowe v. Taylor P. Grasty 7

Anna Frances Jones Lo~ve.

By ~{r. Fry: Q. Did you since that time marry someone 1 A. Yes, sir, I married Reginald Lamont Jones.

page 23 ~ By the Court:

Q. Was he the father of the child? A. Yes, sir.

By 1\{r. Fry: Q. Did you marry Mr. Jones in 1955 or when was itY A. It was in 1957. Q. 1\{r. Jones since died, did he not Y A. Yes, sir. Q. Now 1\{rs. Lowe, where are you presently living? A. At number 9 J{ Street N. W., Washington, D. C. Q. Are you now remarried Y A. Yes, sir, I am. Q. To whom are you married Y A. I am married to Mr. Gurney Jack Lowe. Q. How old is he? A. Mr. Lowe is sixty-six. Q. Do you have any other children? A. No, sir, I do not.

The Court: Did you get her age, Mr. Fry? 1\{r. Fry: No, sir, I am going to develop that.

Q. Tell the Court what is your age? A. I was born June 26, 1.925, I am 31 years old.

By the Court:. Q. You were born in 1925? A. Yes, sir.

Q. You say you are 31? page 24 ~ A. Let me see-31.

Q. What month were you born? A. ,June 26th. ,, Q. June 1925? A. Yes, sir. Q. This is 1960, you must be 35? A. I am sorry, I am. Q. Let's get it straight, you don't know your age, what

else are you going to know if you don't kno'Y ho,v old you are?

~··

8 Supreme Court of Appeals of VirginiJa

A1vna. Frances Jones Lowe.

A. I am thirty-five, sir.

By Mr. Fry: Q. Now, 1\frs. Lowe, just take your time now and calm

down a bit. When did you last have custody of your son Michael¥ A. It was in October. Q. Of 19597 A. Yes, sir. Q. And was he at that time taken from your custody T A. Yes, sir, in October, sir. Q. When was the last time that you have seen him 1 A. It was April 4th. Q. Since April 4, 1960, tell the Court the extent of your

drinking of alcoholic beverages! A. Well, that afternoon I returned to Wash

page 25 ~ ington-on April 4th. At that time I had a job, I felt what is the use, I might as well get drunk,

so I did, and came back to Orange and went down to Mr. Roy Humes, he lives in Rhoadsville. Then on April 6th I quit and I have never touched another drop of anything so help me God.

The Court: You have already held up your hand and have been sworn, you don't need to do that again.

Q. Mrs. Lowe, April 4th, that was the day that this Court awarded custody of the child to the Welfare Department Y

A. Yes, sir. Q. And you say that you got drunk following that time,

and since April 6th you haven't touche4 a drop? A. No, sir.

Note : Here the Court Reporter read the last question and answer back.

By the Court: Q. Is that your testimony as the Court Reporter read it

back7 A. Yes, sir.

By Mr. Fry: · Q. That is s~nce April 6th you haven't touched any alcohol Y A. Yes, sir~


An.na F·rances Jones Lowe.

Q. Where have you lived since April 4, 1960, page 26 ~ l\Irs. Lowe¥ ·

A. \V ell, from April 6th until May I stayed at 1\r[r. I-Iumes as housekeeper, which he paid me, and then it was about the last part of May that I returned to \Vashington and at that time I was visiting my sister and brother, and then I caine back down and I went back in J nne and I stayed, that. is when l\fr. Lowe and I got married, it was July 5th, and I have been there ever since.

Q. What sort of person is ~fr. Lowe with respect to alcoholic habits f

A. lie docs not allow it in his house, sir, and doesn't allow it on his prmnises.

Q. Is he a church member? A. Yes, sir, he is. Q. Are you1 A. Yes, sir, I am. Q. What cl1urch do you presently attend 1 A. The Full Gospel Tabernacle. Q. Is that his church also 1 A. Yes, sir. Q. Is ~fr. Lowe en1ployed? A. Yes, l1e is self-employed, sir. Q. Who owns the house you live in? A. ~fr. ,Jack Lowe. Q. Your husband!

A. ~fy husl1and. page 27 ~ Q. Are you together with your husl1and financially

able to take care of this child 1 A. Yes, sir, we are. Q. A]Jproximately how· n1nch does your l1usbancl earn¥

If you don't know just sa.y so? : A. I don't know exactly.

Q. Docs your l1usband 'vant t11e cu8tody of this child also, with you?

A. Yes, sir. Q. ~frs. Lowe, your misconduct prior to April 6th, did it

consist of drinking aloneA. Do von mean before~ Q. Yes: A. No, I would go out into bar rooms-

By the Court: Q. Do what!

. ·.1

·:~

10 Supreme Court of Appeals of Virgini'a

Anna Frances Jones Lo~ve.

A.. Go out to bar rooms. Q. vVhat do you mean by that. A. That is what thev call a saloon. Q. A 'vhat? " A. A saloon, sir.

1\Ir. Fry: A barroom. The Court: Oh, a bar-roon1, I clidn 't understand her.

Bv 1\Ir. Frv: pag·e 28 ~ ·Q. Have., your ltabits with re;.gard to n1orals,

personal conduct, personal appearance, changed since April 6th 1

A. Indeed they have, sir. Q. Are you presently employed f A. No, sir, I mn not. Q. You would have all of your tin1e to devote to your

husband and your cl1ild ~ A. Yes, sir, I would. Q. ~I1·s. Lowe, have you made any friends there in the

neighborhood in which you reside? A. Yes, sir, I have. Q. Are yon acquainted with tllC ~finister of tlw ~hnrcb,

which vou attend? A. Yes, sir, I am. Q. Ile was not able to con1e here today, was he? A. No, sir, he wasn't able, he tried to get here, I tried

to get hhn to con1e but he was unable, so he g-aye n1e a letter instead.

Q. Is this the letter be gave you? A. Yes, sir.

Note: Here counsel for Petitioner bands the letter to counsel for Defendants.

~Ir. 1\foore: Your I-Ionor, tl1is of course, would he a letterlVIr. Fry: Let n1e offer it first.

page 29 ~ 1\Ir. J\'Io01·e: "\Ye object to it, if it is offered. 1\fr. Fry: I think that would be the time.

I recognize that tl1is, of course, contravenes the hears·ay 1·ule, but in a case of this type we believe that it is within the Court's discretion as to whether or not it wishes to consider evidence of this type, and, we, therefore submit this in evidence, hearing in mind that the writer resides in

Anna }..,ranees Jones Lowe v. Taylor P. Grasty 11

Anna Frances Jones Lowe.

'Vashing·ton some one hundred n1iles from here, and it would be sOinewhat of a burden for him to be here.

The Court: Do you object? 1\Ir. :Moore: 'Ve object. The Court : The objection is sustained. l\Ir. Fry: ''r e would like to have it n1arked HS rejected. The Court: All right, sir. 1\Ir. Fry: Anticipating the same objecting and presumably

t lw san1e ruling·, but for the smne reasons we wish to offer to the Court four affidavits duly acknowledged by t11e persons signing- the same, bearing upon the issue in this case and hvo affidavits that were not acknowledged, for the Court's

consideration. page 30 ~ :1\ir. lVIoore: 'Ve object to then1 on the ground

that they are hearsay. · The Court: The objection is sustained. Let ~Ir. Cuuninghan1 n1ark them and I will initial thmn.

Q. 1\I rs. Lowe, in preparing for tl1is hearing today did you cause or take smne pictures of your hmnc?

A. I did, sir. Q. I will hand you a series of eight pictures and ask yon to

examined those and tell the Court where they were taken and whether or not they are the pictures that you took and whether or not they show as much as possible of the areas of the house that are noted on the pictures f

A. Yes, sir, they are, sir.

1\fr. Frv: 'V e would like to introduce these into evidence marked Exhibits 1-a, 1-b, 1-c, 1-d, 1-e, 1-f, 1-g, 1-h.

The Court : All right, sir.

Q. I will hand you three additional photographs, that have already l1een shown to counsel, and ask you whether or not those were taken by yon and if they sho'v as much as possible of the roon1 you would have for 1\fichael, if he were awarded to you?

A. Yes, sir.

1\ir. Fry: I would like to introduce tl1ese into page 31 ~ evidence as Petitioner's Exhibits, 2-a, 2-b, and 2-c.

The Court: All right.

Q. Do you love Michael? A. Indeed I do, sir.

:.,: ..

0\4

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12 Suprmne Court of Appeals of Virginm


Q. Have you always loved him 1 A. Yes, sir. Q. Ifave you lost interest in him in any way? A. No. Q. Have you sent hin1 anything since he was taken from

youf A. Yes, sir. Q. What have you sent hhn and when, without having to

uan1e objects? A. I don't know exactly the dates I have sent the1n, sir, but

I have sent l1hn clothes, I think I gave hhn candy, I don't know whether I sent him cookies or not, but I 1nostly gave hhn clothes.

Q. Did you send him cardsf A. Yes, sir. Q. Did you send hin1 any of those tl1ings l1eforc April 4th,

the hearing in this Court f A. No, I don't think I did. Q. That was the date tl1is Court awarded custody of the

child. . A. Oh, I beg your pardon, yes I did, I used to

page 32 ~ Rend things down to ,Jean's and 1\frs. Adams'.

4th? Q. That was where 1\Hchacl was prior to April

A. Yes, sir. Q. And since tlmt elate you have sent things to be given

to him througl1 the Welfare DepHrtment? A. I have sent them to Mr. Higginbotham. Q. Not }{nowing where the child is? A. That is right. Q. ~{rs. Lowe, you have testified that you have changed.

Do you feel that this change is permanent or do you think you are apt to revert to your old ways?

A. Never again, sir, to my old ways, because I am away from down here now, and I am with ttood people and I tto to church and I associate and n1irigle with good people and I "rill never go back.

Q. If the Court should award the custody of this child to you, would you be willing to have it on the basis of supervision of an agency in Washington or any other Welfare agency?

A. Yes, sir, I would. Q. Would you be "'illing to l1ave it on a trial basis, a

tentative basis, under the orders of this Court?


.Awna Frances Jones Lowe.

A. Yes, sir. Q. And the supervision of this Court Y A. Yes, sir.

Mr. Fry: All right, witness with you.

page 33 ~ CROSS EXAMINATION.

By ~:fr. }floore: Q. lVfrs. Lowe, I hand you Petitioner's Exhibit 1-A which

purports to be a photograph of the front of a house? A. Yes, sir, that is the front of the house, sir. Q. \Vhat is the address of that house? A. Number 9 K Street, N. W. Q. 1Yashington, D. CY A. Yes, sir. Q. Is there any yard in connection with that houseY A. Yes, sir, there is a yard further over this way; this is

the fence that comes down here. Q. How many rooms do you have in the house? A. There are eight rooms altogether. Q. Where are the bed rooms upstairs or downstairs? A. Well, our bed room is downstairs and we rent the

upstairs out. Q. You were living at this house in April of this year,

were you not? A. Yes, sir. I moved there in March through my brother

and I came in contact with Mr. Lowe. Q. You 'vere living at that house at the time we had the

hearing- in this Court on April 4, 1960, weren't you f A. That is right, sir, I had a room upstairs-a light

housekeeping room. page 34 ~ Q. But you didn't tell us anything about that at

that hearing, didn't you tell us you were living somewhere else at that time?

A. No, sir, I didn't, sir. Q. You had a room where Y A. At number 9 K Street, N. W., my room was on the

second floor, it was a light housekeeping room. Q. Under what circumstances, was Mr. Love living there? A. He had the downstairs, I just rented the upstairs room,

I paid $8.00 for my room, and· I was working at the Hollywood Inn on 14th Street, N. W.


Anna Frances Jones L01,be.

Q. You 'veren 't having any rooms with lVIr. Lowe like you had with other people before?

A. No, sir, the only time I saw him-most of the time my brother paid my rent or my sister, I would see him sometimes when I come in, I never saw him in the evening.

Q. 'V ere you able to pay any rent? A. I did pay my rent, but tl1e first couple of weeks they

kept back my money, and, of course, my sister and brother paid it. I think they have the receipts.

Q. Did you have a telephone at this house in April, 1960? A. No, sir, I didn't. Q. You told us in April, 1960, you had. a two-room

apartment? A. Yes, sir, you might as well say it is a two

page 35 ~ room apartment, it had a little kitchen. Q. Now you tell us it was a housekeeping room 7

A. I call it a ligl1t housekeeping room. Q. Which is it a two room apartment or a light house

keeping room? A. I would call it a light housekeeping room. Q. So, it is not a two room apartment? A. No. Q. You and 1\{r. Lowe were married on what date? A. July 5th of this year, sir. Q. Didn't you just testify that you were married in J nne Y A. No, sir. Q. 'Vhat is 1\Hchael 's birthday? A. 1\Hchael 's birthday is July 28, 1955.

The Court: What is the date she said they were n1arried? lVIr. 1\{oore: She said July 5, 1960.

Q. Now you told us that you and Reginald Lan1ont Jones 'vere married in 1957, is that correct¥

A. That is right. Q. As a. matter of fact you . and Reginald Lamont Jones

were married in the year, 1959, January 30th, in Rockville, 1\faryland, weren't you¥

A. I don't know, I don't have the marriage certificate with me.

page 36 ~ Q·. Don't you know whether you were married in 1957 or 1959, that is two years?

Ho"r many times have you been n1arried, 1\frs. Lowe 7 A. Three times.


An;na Frances Jones Lo~ve.

Q. When were you :first married? A. I was married to Mr. Aratari. Q'. When were you married to him? A. That was in about 1948 I 'vas married to him. Q. Do you know what date it was 1 A. I think it was about Septmnber 18th and we were

married in Baltin1ore, llf aryldn at St. Paul's Church, on North A venue.

Q. "That happened to Mr. Aratari? A. He was killed, sir. Do we have to bring· all this 111,

sir?

1\Ir. Fry: You just answer the question. The Court: Answer the question, your counsel will make

tl1e objections.

Q. I-Ie was murdered? A. Yes, sir. Q. By whom? A. 1\fy mother, sir.

J\tir. Fry: If your Honor please, I do think this is going too far. I wasn't aware of this or the purpose, but

page 37 ~ apparently counsel for the Welfare Department is aware of it.

The Court: I agree. Of course, if this petitioner, notwithstanding the ruling of the Court, if this petitioner 'vas in any way ilnplicated, I would admit it.

Mr. Fry: Yes, sir, he !apparently knew what the situation was.

Q. You testified before that 1.\-Ir. Jones bad died also. How did he meet his death?

A. "\V ell, as far as I know he was burned up. Q. You do not know? A. Yes, sir, I went to the hospital to see him. Q. You weren't implicated in that in any 'vay? A. No, sir, I was not even at home.

The Court : "\Vas any charge made against her in connection with either of her husband's deaths?

l\fr. l\{oore: I don't know, your Honor, I an1 just asking. The Court : All right.

16 Supreme Court of Appeals of Virginila


Q. Now, your son, Michael, was born on July 28, 1955, and his father was R-eginald Lamont Jones Y

A. That is correct. Q. And you and Reginald Lamont Jones were not married

until January 30, 1959, some four years after his page 38 } birth, is that correct Y

A. T·hat is right, sir.

By the Court: Q. Where did the child stay during that time Y "\Vith

whom¥ .A. He stayed with us, sir. Q. Who do you mean Y .A. With Reginald Lamont Jones and I. Q. You all lived together' A. Yes, sir. Q. Before you were married 7 .A. Yes, sir. . Q. How long did you and ~fr. Jones live together before

thatY A. Since 1952, I met Mr. Jones in 1952. Q. You all lived together from 1952 until 1959 and then

you were married, is that rightY .A. Yes, sir.

By Mr. Moore: Q. Now, you stated that you came back to Orange on

April 6th after the hearing, you got drunk and came back here and that you stay with Roy Humes until the latter part of May, is that correct Y

A. That is correct, sir. Q. You had stayed with him before on at least one occasion,

had you notY page 39 ~ A. Yes, sir, I didn't stay with Mr. Hume, I lived

at his house, I worked there. Q. You did stay with him on occasion prior to the custody

hearing, is that right Y . ,,·_.t'~:'- A. I didn't get you right. lit:'::,_:~ Q. You did stay with Roy Hume prior to April 4, 1960? ~: A. Oh, yes, I went back to his house, but as housekeeper. ~~·

~{. .By the Court: ~ ... : Q. Who occupied the house?


.Anna Frances Jones Lowe.

A. 1vir. Roye Humes, he has three children, he has tw·o boys and a girl.

By Mr. Moore: Q. Did he pay you to stay there as housekeeper Y A. He did, sir. Q. II ow much did he pay you Y A. He paid me $5.00 a week. Q. Isn't it true that Roy Humes was drawing public

assistance from the Welfare Department Y A. Not as I know of. Q. You don't knowT A. No, sir. Q. Was he drawing public assistance when you stayed with

him the last time Y A. No, sir, he was cutting wood for someone.

Q. Did he pay you this last time Y page 40 ~ A. Yes, sir, he did, sir.

Q. Didn't Mr. Hume get out a warrant against you on one occ.asion for trespassing?

A. That is the first time, I got drunk and that is why I went to jail and the next morning I went to trial and committed myself to Western State.

Q. I am not talking about that, but didn't 1\tir. Roy Hume get out a warrant against you for trespassing?

A. Yes, sir. · Q. But you all apparently patched up your differences? A. Yes. Q. Mr. Hu1ne visited you at Western State, didn't he? A. Yes, sir, he did. Q. Didn't he go up and get you and bring you back t A. No, sir, he didn't, I came back alone. Q. Now ~irs. Lo·we, you stated that you l1ad always loved

~IichaelY A. I have, sir. Q. There were occasions were there not wl1en you would

go out and leave hin1 alone in the house Y A. No, sir, I never have, sir. Q. Do you ever recall telling Michael when you put l1hn

to bed at night not to get out of the bed because there were snakes on the floor?

A. No, sir, I never told my child that. Never. page 41 ~ Never in my life.

. ' ~ ·, · ..

. '

18 Suprmue Court of Appeals of ·virginhl

Gurney Jack Lowe .

• • • • • page 42 ~

• • • • • Q. Mrs. Lowe, yon have stated that you have always loved

l\1ichael and still love him? A. Of course, I do, sir. Q. Are you interested in his welfare and his hnprovetnent? A. Indeed I am, sir. Q. "\Yell, suppose the evidence should be that he is n1ucl1

better off and is hnproving a great deal from his prior condition where he is now. If that 'vould be the evidence 'vould that have any effect on your feeling about this suit you have hrought here?

1\fr. Fry: I object to that. The Court: The objection is sustained. That is exa('tly

the question the Court has to answer. I 'vish sotne witness could answer it, but I 'viii have to answer that .

• • • GURNEY JACIC LOWE,

another witness for tl1e Petitioner, being first duly sworn, waR examined and testified as follows:

DIR.ECT EXA~IINATION.

Bv 1\{r. Fry: · Q. All right, ~Ir. Lowe, you are Gurney Lowe.?

pag·e 43 ~ A. That is right.

The Court: Ho"r is that~ Give tne your initials.

A. It is Gurney J., the J is for Jack-Gurney Jack Lowe. Q. State your age and residence and occupation f A. I am 66, I am a contractor. Q. And your residence 1 A. No. 9 K Street, N. W. Q. Are you employed? A. Yes, sir. Q. How long have you resided at 9 J( Street N. W .

. . : . ~· -


Gurney Jack Lo~ve.

A. I have been there going on nine years. Q. How long have you been in the business that you are

now in? A . .About approxin1ately eighteen years. Q. 'Vhat is the nature of that business? A. 'Veil that ineludes carpentry work, brick work, plumbing·,

heating, electrical work; it is general repairs through the house and some new houses.

Q. Do you do any of these jobs yourself or do you have employees?

A. I have employees that work for me and I do some of the work, too, when I have time.

Q. \Vhat is your average incmne per year? page 44 ~ A. It runs approxilnately about six thousand

dollars a year. Q. Is that net? A. Yes, sir. Q. Do you own any property? A. \Vhere I live, I own No.9 J{ Street, N. Vv. Q. Now, when did you first meet 1\{rs. Lowe, your present

'vife? A. Well, it is approxin1ately about four months be fore

we were married. Q. And what was the occasion of your n1eeting! A. I met her through her brother 'vhere come and rented

an apartment in one of n1y places, you see. Q. Did she live there? A. She was there part of the time and then she was down

here, so I understood, part o·f the tin1e. · ' ' Q. W11a t sort of room or rooms did she have? ;t~·· :,

. A. Well, sl1e had a place with a Frigidaire, gas range, all »'"··.:.:~-~-::~.-~.:_.,:. "'_ vou know modern conveniences. _ ~~ "' Q. What I mean, was it one roon1 or two rooms 1

A. One room. Q. Do you call it an apart1nent? A. Vl ell. they do, yes, they call it an apartment where tlte~r

ha.ve a Frigidaire and gas range and facilities for cooking, they call that an apartment.

Q. Is that sepa1·atecl frmn the living a:re!a by a room~ ,:,~ A. Yes, sir, they l1ave a hall and each roon1 is se- -~1

page 45 ~ para ted. ~ Q. Yon and 1\frs. Lowe we1•e n1arried on wl1at

date? A. The 5th of June. -~

20 Supreme Court of Appeals of Virginro

Gu'rney Jack Lowe.

Q. The 5th of what month Y A. The 5th of June, I believe that is correct, the best I

can remember. Q. When were you married in connection with the Fourth

of July, was it before or afterward? A. I believe that was-I am not sure. Q. All right, sir? A. I am not sure of that date. Q. Have you been previously married, :1_\lfr. Lowe? A. Yes, sir, my wife-my other wife has been dead for

two years, we was n1arried approximately about thirty odd years. · Q. Do you have any children by your first wife?

A. No, nothing only a step daughter. Q. Is that step daughter 6'TOWn and n1arried? A. Yes, sir. Q. }\lfr. Lowe, since you and your present wife have been

n1arried what has been her conduct with respect to sobriety, morals and so on?

A. VI ell, I don't think a man could ever have a better wife t11au she is; she goes to church, she belongs to the church, which I belonged to church for quite sometime, and I don't

have nothing around me, even on my job, I don't page 46 ~ allow anything out of the way; I work in manv

peoples' houses and very respectful people ·and I cannot have people like that around n1e. She has been a g-ood wife, she goes to church, she goes to prayer meetings. I think that is doing what everyone should do that tries to do right.

Q. "\Yere you aware of some of her past history? A. Yes, sir, I 'vas, and I prayed day and night and l1ad 1ny

minister to pray, I l1ad Evangelist R.oberts to pray and I pra~ved and my prayers were answered, thank God.

Q. Did you discuss ~frs. Lowe's background with your n1inisterT

A. Yes, sir. Q. Do vou l1ave any ya.rd space a round your house? A. 1\tiy lot is approximately 19 feet wide and 90 foot from

the hack of my l10use to tl1e 9ne below my lot-to the house frmn the back is 90 feet, then I have a garage •and that turns anfl g-oes out into the area wl1ere the patrol cars come throug-h.

Q. In other words, you have 'a yard 90 foot long in the hack?

A. Ye~, sir.


(Jurney Jack Lowe.

By the Court: You said it was 19 feet wide by 90 feet?

A. Yes, sir.

By }fr. Fry: page 4 7 ~ !fir. Fry : No, sir, let me clarify that.

Q. It is 90 feet from the back of the house to the back of your lot, is that right Y

A. That is right, it is 90 feet from the back of my house to the back of my lot, then it turns and goes in an areaway.

By the Court : Q. What is the width on the front? A. Do you mean the house f Q. No, the lot? A. It is approximately nineteen feet wide. Q. Can you build a house on a 19-foot lot Y A. Now wait a minute. I will correct that a little. My front

room is 13x18, I papered it myself and the hall has 42". We have got approximately nineteen feet ·and we have a 12" wall inside, that makes it about 21 feet.

Q. In other words, the house occupies all the width of the lot? ·

A. Yes, and the yard does.

By Mr. Fry: Q. Is tha.t the way those houses are built, they use the ad

joining house for wall support? A. Yes, sir. Q. ~Ir. Lowe, are you desirous of your wife obtaining cus

tody of Michael? Do you desire that she do that Y page 48 ~ A. Yes, sir, I certainly do.

Q. If she obtains custody of the child, do you anticipate taking any steps in connection with that child Y

A. Well, I certainly will, I will see that he goes to church and has a good education.

Q. Do you have any plans in connection with whether or not your would adopt him Y

A. Yes. Q. Tell the Court about that. A. I would like to have him in my name, so that I can see

he stays upright. I think if a boy is brought up right like that the Courts will have less trouble. ···-~

' .,.;


. (]u.rney Jack· Lowe.

By the Court: Have· you ever had :any experience in raising children~

A. Yes, sir. Q. What experience have you had 7 A. I have had three, I have a daughter ought here. All

went through high school and are very well educated a.nd they are nice and church going people.

Q. You said you had one step daughter T A. Yes, sir. Q. What about the other twot A. That was by my first wife. I have been married twice

before. On our first n1arriage tbe Court give me possession of the two children, that was the way it was decided in Court.

By 1\ir. Fry: page 49 ~ Q. You and your first wife 'vere divorced?

A. Yes, sir. Q. And you were awarded custody of the children and you

remarried? A. Yes, sir. Q. And that is the wife who died some two years or n1ore

ago? A. Yes, sir. Q. Going back a little bit, before the time you married !Irs.

Lowe, the time you first knew her. vVhat was her conduct and general behaviour f

A. Well she never bothered anything there in the house, she was gone, I don't know, down here to Orange: she was worried about her baby, and I talked to l1er once, I told her the only way you can have anything in the world is to get right with your maker. If you will try to pray, God will help you, and I think that had a lot of influence over here and I know she is good.

Q. Do you think she would be a fit and proper person to have custoclv of !fichael?

A. Yes, sir, if she wasn't I woulc1 say he would have sOinebody to take care of him, I wouldn't stand for anytl1ing else.

Q. 1\fr. Lowe, there is a considerable difference page 50 ~ between the age of vour wife and yourself, do

you think that ':v-oulcl have any bearing on tl1is matter?

A. No, sir, not if two people really care for one another, it will stay with them, and live right and live by God; that

Anna Frances Jones Lo\\re v. Taylor P. Grasty 23

Gurney Jack Lowe.

is the only way you can get through in the world. You cannot serve two masters.

~Ir. Fry: Witness with you.

CROSS EXAMINATION. By ~fr. ~foore:

Q. H·ave you known ~Irs. Lo~v intimately and if so for ho'v long, l.VIr. Lowe 1

A. You mean since I first met her¥ Q. How long have you known her well¥ Known her inti-

mately¥ A. Well, I have known her for about seven months. Q. Did you know her ·well? A. I beg your pardon. Q. Did you kno·w her well or was she just an acquaintance¥ A. No, I knew she had drink some and tried to talk to her

and prayed for her and had my minister to pnay for her and m~any others to pray and I think that had 1a lot to do with it. I believe God answers any pray that is in earnest.

Q. How well did you know J\ilrs. Lowe back in April of this year¥

A. V\T ell, I met her about four months before page 51 ~ we were married.

Q·. Which would have been about April? A. Somewhere along there. Q. Well, of course, she was down here in Orange from the

5th of April until the latter part of May, was she not? A. I got letters from her down here and she said she was

praying. Q. And then she came back in the latter part of May and

you all were n1arried June 5th, is that right¥ A. Yes, sir. Q. Now J\iir. Lowe, J\iirs. Lowe said that you all were married

July 5th. 'V ere you married on June 5th or July 5th¥ A. I 1night be wrong, I don't remember whether it was

.June or July, but we have been married right at three months.

Q. So that would n1ake it June 5th? A. Yes. Q. If you have been married three months it would make

it approximately June 5th? A. Let's see, I did have a marriage certificate, I gave it

to the attorneys.


Gurney Jack Lowe.

By the Court: Q. You all have the worst time remembering dates of any

witnesses I have ever seen. Don't you know when you were married!

A. I tell you I have been through so much and page 52 ~ had so much on my mind for the last four or five

weeks. Q. You have had more on your mind since you got married 7 A. No, but these things- ·· Q. You have been married is it two months or three

months? A. We will soon be married three months. Q. You are satisfied it was June? A. I couldn't say whether it would be June or July. Q. You could figure three months, you said it 'viii soon

be three months Y A. Yes, sir. Q. If it is going to be three months in September, that

would make it June, wouldn't itt A. Let's see, September 2nd, that would be July- July

5th. Q. July 5th? A. At 7:30. Q. So then you have been married two months instead of

three? A. Two months the fifth of this-Q. Two months the fifth of September? A. Yes, sir.

The Court: All right, no"r we have got that straight.

By Mr. Moore: page 53 ~ Q. And you haven't known Mrs. Lowe--the

present Mrs. Lowe-except since April-approxi-mately the last of April, is that correct?

A. That is right. Q. And she wa.s out of town part of that time? A. Yes, sir, she was backward and forth. Q. So you haven't known her very long? A. It is about six months or may be a little over. Q. Actually a little under. A. I mn not going to say that, I haven't checked it up that

close.

.... \nna Frances Jones Lowe v. Taylor P. Grasty 25

G-u-rt~ey Jack Lowe.

Q. This photograph, does this show your house and the width of your lot there in 'Vashington 7

A. No, you see we have flowers, this is the sidewalk going in here to the front and here is the property line over here and the propertly line is back here.

By the Court : Q. Is that the front of your house, that is the question 7 A. Yes, sir.

Mr. Moore : I think the Court would like to see th!a:t since the question has been raised about the width of the lot.

By ~fr. Moore: Q. What is behind your house, you say you have a garage t

A. My lot runs straig·ht back for ninety feet page 54 ~ and then I have a garage that leads out, it is about

18x14. Q. So part of the back yard is taken up by the garage T A. No. No, the back lot runs straight through to the back

end of the angle.

By the Court: Q. Is the garage built on son1ebody else's property or on

your lot? A. No, sir, on my lot. Q. Then it takes up part of the back yard Y A. It takes up an offset in my lot, it would be 28 or 29 feet

where the garage is.

By Mr. Moore: Q. It is not a very good place to raise children, is it? A. I don't know, my daughter in I~aw lives right there and

she has five; they have a playground in a block from where we are.

Q. Do you have colored people living in that neig·hborhoodY

A. They are all over Washington practically. Q. Well, if the child couldn't play in this 19 foot yard, if

you want to call it that, that you have in the rear, the only other place to play is on the street?

A. No, sir, not on the street.

·I

~~:::.~~{~

".-----·· .. ·.:- .....

r· -~-

'l

26 Suprenw Court of Appeals of Virgin~a

Gurney Jack Lowe.

A. Now how old are your children~ ~Ir. Lowe? page 55 ~ A. 'Veil, my daughter is forty-three, I believe.

Q. You haven't had to do with small children in a long, long time, have you?

.. A.. Nothing more than the ones I meet from day to day and stuff like that, working in people's houses and stuff like that, you meet quite a fe'v nice children.

Q. How is your health, ~Ir. Lowe T A. "\V ell, I haven't been sick in oh-I guess since I had

the flue. Q. You are in good .health 7 A. Yes, sir. Q. Now, you said you had an income of approxinuttely

six thousand dollars a year, and you also own the house in 'vhich you live. Do you have any other property?

A. That is all, I sold n1y farm, I had a farm down in 1\Iaryland and I sold that a few years ago.

Q. Suppose you beca1ne unable to work, do you have enoug·h money to support a wife and child Y

A. Yes, sir. Q. Where 'voulcl that con1e from? A. That would con1e from my pension and other resources. Q. Your pension~ A. Yes, sir. Q. What kind of pension?

A. Well, I get retirement. page 56 ~ Q. \Vhat type of pension?

A. That is the old age pension. Q. You mean social security~ A. Yes, sir. Q. That is all you have? A. That is all except my insurance. Q. Life Insurance? A. Yes. Q. You cannot buy life insurance now, can you? A. I haven't tried, but I can for the boy. Q. Well now, I want to ask you this: You said that you

and Mrs. Jones, as she was, had talked about her past history and about her trouble and about trying to find some religous ground o1· some way to solve these problems through prayer, and yet she 'vent down here to Orange and stayed down here -almost two months, during which time she wrote to you and told you she was praying. I wonder why sl1e caame

Anna Frances J onos Lowe v. Taylor P. Grasty 27

JYlrs. Arlene lJforehan.

down here~ Why didn't she stay there with you, so she would be closer to your church f

Mr. Fry: I object to counsel wondering. I may have wonders, too.

The Court: The witness may answer the question, but the objection to the form of the question is sustained.

By the Court : page 57 ~ Q. Do you know why she stayed for sometin1e

last spring in OrangeY A. 'Nell, she told rne-Q. Not what she told you. A. In her letters is all, that she 'vas praying and that she

thought if she was down here in the country out where she was it she could stay away from all of that stuff. I told her, ''If you pray and get right nothing can get you.''

Bv 1\ir. Moore : ·Q. But instead of being with you in Washington she was

clown here with Roy Hume Y A. I don't know about that, all I got was the letters and

address. Q. Is the upstairs of your house rented out at the present

time~ A. I have a man and wife and their little girl living in one

apartment and that is all. Q. They live in an apartment upstairs, how many rooms

do they have¥ A. They have one large room 19x14. Q. \"\There 'vould Michael stay, would he stay upstairs or_,_.,.

stay downstairs Y A. She has a room all fixed up for him, I don't kno'v whether

she has a picture of that or not. Q. \V e have seen pictures of it. Where is that room?

A. Right next to the bath. page 58 r Q. Upstairs?

Yes.

• • • • • 1\ffiS. ARLENE ~IOREHAN,

another witness for the petitioner, being first duly sworn, was examined and testified as follows:

.. , . '1]

... .;.~

:j .•; "'!

""'; ..:~

~~ .:I

·B ' . ·~~

.;.l

.l

~ .... ~::

k{c·"' t--). ~-: i , ..

f:·

28 Supreme Court of Appeals of Virgin~a

Mrs. Arlene Morehan.

DIRECT EXAMINATION.

By Mr. Fry: Q. Will you state your name, pleaseY A. Arlene Morehan. Q. How old are you, Mrs. Morehan? A. I was fifty-five the 19th of August. Q. Where do you live T A. Number 7 I{ Street N.W. Q. Is that adjoining the premises in which Mr. and ~Irs.

Lowe live? A. Yes, right next door. Q. I-Iow long have you known Mr. LoweY A. I have known him about eight years-eight or nine

years. Q. What are Mr. Lowe's habits with respect to alcohol and

running around and things g.f that sort? A. I don't think he has any habits, he has al

page 59 } ways worked every day and is home in the even-ing.

Q. Have you ever seen him drink? A. No, I have never seen him drink. Q. Have you ever seen him do anything out of the way t

Any misconduct 1 A. No-No, I haven't. Q. How long have you known 1\tirs. Lowe 1 A. Well, I have only known her since they got married in

June or July. Q. Have you had occasion to visit her Y A. Yes, I have. Q. What has been her conduct? A. She has been very wonderful, she does her work. Q. Does she drink f A. No. Q. Does she consort with other men? A. No. Q. Have you had any children 7 A. Yes, I have four children. Q. Do you they live in the neighborhood witlt you? A. Yes, my oldest boy is hventy-six, he is going to :M~ary

land University and graduated in February, and my youngest boy is going to George Washington, he is a sophomore ;


Mrs. Arlene Morehan.

I have a boy in the army, he is in Kentucky, and my daughter works for an insurance company.

page 60 } Q. Did these children live there at your pres-ent address when they were young?

A. Yes. Q. Do you think, based upon your knowledge and observa

tion of Mrs. Lowe, that she would be a suitable person to have custody of her own child Y

A. Yes, I do.

• • • • •

Q. Do you think the neighborhood there is adverse to raising children or not f

A. I have raised my children and thank God I l1a.ve never had a bit of trouble with them in court or anything·. The only trouble was driving the car, my youngest boy went to

Gonzago High School and the Priest would say he page 61 } was one of the nicest boys in the school.

Q. Being familiar with the home do you think that is a proper home environment in which to raise a young boy¥

A. She has got a lovely home and got a lovely bed room for the child, it is fixed up beautifully and has got everything a child would want, I saw it no later than last night; l1e bas his own furniture a.nd his own bed.

Mr. Fry: All right witness with you.

CROSS EXAl\1:INATION.

By 1\Ir. Moore: · · ' ··-Q. 1\{rs. Morehan, you have known 1\Irs. Lowe only since

the early part of July of this year, is that right? A. That is right. Q. Do you really think you have known her long enough

to be able to express an opinion as to whether she is a fit person to care for this young boy Y

A. As long as I have known her she has not done anything out of the way; sbe is there every day, and the lights are out-the way the house is setting their house and my back porch face one another, and the lights are out every night bv 10 o'clock.

· Q. I understand she has been all right since you have known her but the question I asked you is do you think you

~··

30 Supreme Court of Appeals of Virgini:a

lJtl rs. Hat tie Lowe.

have known her long enough to be able to say she is a fit person to care for this child'

page 62 r A. W eU, I think she would be ; where there is a will there is always a way to do things. Any

mother loves her child, I don't care who they are. Q. It wouldn't make any difference who the mother ·was,

they would love their children Y A. I know I love children. Q. Did you kno'v her when she was 1\.frs. Jones? Did you

know her before she was married T A. No, I didn't. Q. She was living there, wasn't she f A. She might have had a. room upstairs. Q. Did she have a room upstairs 1 A. 1\fr. Lowe has rooms, s}1e was not the only one there. Q. The question I am asking you is, was she there? A. That I couldn't say. Q. You don't know who was living right next door Y A. The roomers are in and out, I don't bother with them .

• • • • •

page 63 r ~IRS. HATTIE LOWE, another witness for the petitioner, being first duly

sworn, was examined and testified as follows :

DIRECT EXAMINATION.

By 1\Ir. Fry: Q. You are 1\frs. Hattie Lowe¥ A. lam. Q. I-I ow old are you, Mrs. Lowe~ A. Forty-two. Q. Are you related in any way to either 1\fr. Lowe or 1\frs.

Lowe? A. I was married to 1\fr. Lowe's son, he is dead. Q. In other words, you were his daughter in l·aw? A. That is right. Q .. A.nd where do you live? A. I live right beside 1\tir. Lowe. Q. How long have you lived there in that neig·hborJJ_ood? A. Three years. Q. Now ";hat are the habits of your father in law with

I I

I I


J.l1.rs. Hattie Lowe.

respect to drinking and going out and staying out late hours and running around Y

A. l\1r. Lowe has never stayed out late. Q. How about drinking! A. Well, lVIr. Lowe has not been drinking for somethne. Q. By sometime do you mean months, years Y

A. Almost a year; it has been quite sometime, page 64 ~ I don't know when he was drinking last- may be

around last Christmas; I think he was drinking a little bit then.

Q. What is his conduct, was he misbehaving then or any-·thing?

A. No, I l1ave never seen anything wrong of Mr. Lowe. Q. Is he a church member Y A. Yes, sir. Q. Is he a faithful church n1ember Y A . .After he stopped his drinking that last time he started

going to church. Q. How long have you known Mrs. LoweY A. Since she married Mr. Lowe, the fifth of July. Q. Have you visited in her homeY A. Yes, sir. Q. \V'ha.t type of home does she have¥ .A. A nince, respectful, clean. Q. What has been her conduct since you have known her 1 A. Just perfect, as far as I can see. Q. Do you have any children 1 A. I have three at home and two married. Q. What are the ages of those at home 1 .A. Four, ten and thirteen. Q. And you live next door? A. Yes, sir.

Q. Do you think that the home there of Mr. page 65 ~ and Mrs. Lowe offers a. suitable environment for

a young child 1 A. I would think so, my four year old seems to get along

with his grand-father real good.

J\Ir. Fry: All right, witness with you.

CROSS EXA1\1INATION.

By 1\Ir. Lowe: Q. How long have you known tl1is 1\{rs. Lowe well! .. ..

~-·,

~.:·1(1,·· ... ·~ '"

t .. ·

~~ r ~~\'.•i-


JYJ rs. Thelma Tate.

A. Well since the fifth of July, since here and Mr. Lowe were married.

Q. You didn't know her before that time Y A. I have just seen her that was all. Q. Now, you say that Mr. Lowe stopped drinking· the last

time about a year ago, you think! A. It seems to me Hke it was. Q. Around Christmas T A. I never did see him very drunk myself, up until he was

married I didn't visit in the home because he was out working.

Q. He had had a problem like Mrs. Jones' problem at one time in his life¥

A. Yes.

• • • • •

page 66 ~ MRS. THELMA TATE, another witness for the petitioner, being first duly

affirmed, was examined and testified as follows :

DIR-ECT EXAMINATION.

By ~Ir. Fry: Q. You are 1\Irs. Thelma Tate Y A. Yes, sir. Q. You live where Y A. 57 l{ Street, N.W. Q. How old are you Y A. Forty-six. Q. Are you related to Mr. Lowe? A. I am his daughter. Q. Do you have any children Y A. Yes, I have a daughter. Q. How old is she' A. She is 29 now. Q. How -long have you known your step-mother, Mrs. LoweY A. 'Veil about the middle of June, I would say. Q. Have you visited in your father·'s home since their

marriage! A. Oh yes, I am down there quite often. Q. You reside where Y A. 57 K Street.


JJtlrs. Theln~a Tate.

Q. That is in the same block? page 67 ~ A. Yes, it is.

Q. What has been ~Irs. Lowe's behaviour so far as· you know it since the time you have known her 1 Is her conduct good or is it bad or what?

A. I think it has been good. Q. Has she misbehaved in any 'vay? A. No, sir, !and I think I 'vould know if if she had. Q. Does she go to church! A. Yes. Q. Do you think that the home there is a suitable hon1e for

a young child~ A. Yes, I sure do. Q. Do you have an opinion as to whether or not 1\frs. Lowe

is a fit and proper person to have custody of her four or five year old child?

A. Yes, I think she is. Q. Do you think that your father is in a position to support

her and her young child? A. Yes, as long as his health holds up.

Bv the Court : ·Q. So long as what? A. llis health holds up. Q. Is he elligible for social security? A. Oh yes, and I might add would get the largest amount

in social security because he has made a real big salary.

page 68 ~ fifr. Fry: All right, witness with you.

CROSS EXAMINATION.

Bv ~fr. 1\Ioore: ·Q. l\frs. Tate, you were speaking· there about social security

and what he would get under the present law, that would be in the neighborhood of $130.00 to $140.00,- is that correct? Is that approximately right?

A. I think so, I am not for sure about that. Q. lias 1\Jirs. Jones been away from the home there on K

Street since she was married to Mr. Lowe? A. Not except to town to the dentist. ·Q. 'Vhen did 1fir. Lowe stop drinking? A. Well, I would say along the last of April, but no'v he

hadn't been drinking before that very long.

-~.·.··.::. ~ ·:~

1

34 Suprmne Court of Appeals of Virgini!a

By the Court: Q. Of this year Y A. Yes, sir.

A. By 1Yir. Moore :

Mrs. Rose Owens.

Q. Now, you have only known the present ~{rs. Lowe about three months or a little over?

A. Yes. Q. Do you think you have known her long enough to give

an opinion as to whether she is a fit person to have custody of the child or not?

A. vV ell, I think my opinion would be based on page 69 ~ the fact that she shows love for her child. Of

course, I didn't know her before, and she has no intention of drinking and I don't think she will and if she doesn't drink there is no reason in the \vorld why she can't properly care for her child.

Q. You could be mistaken in that opinion, couldn't you¥ A. No. Q. You don't think it is possible that you could be wrong? A. No, not unless she drinks. Q. Suppose she did drink f A. That is between her and the Lord, I don't know .

• • • • •

~IRS. ROSE O'VENS, another witness for the petitioner, being first duly sworn, was examined and testified as follows:

DIRECT EXAl\IINATION.

By J\Ir. Fry: Q. vVill you state your name, please 1 A. Rose Elizabeth Owens. Q. Mrs. Owens, where do you live? A. No 9 l{ay Street, N.,V., Washington, D. C. Q. Do you rent your property that you live in? A. Yes, I rent from ~Ir. Lowe and Mrs. Lowe.

page 70 ~ By the Court:

Q. You rent a room? A. Roon1, yes, sir.


1111·s. Rose Owens.

By J\tir. Fry: Q. How long have you been living there-renting there? A. Approximately two years. Q. Are you married? A. Yes, I am. Q·. Who lives there with you? A. My husband. Q. Do you have any children Y A. I have one child. Q. I-I ow old is your child? A. She is two years old. Q. Ho\v long have you known ~Irs. Lowe? A. "\Veil, I have known Mrs. Lowe since before she was

married to J\tir. Lowe just by speaking to her, I have seen her and spoke to her, by seeing her and speaking to her coming home from work, but I was never friendly 1vith her until she married 1\{r. Lowe.

Q. Have you visited there in the home? A. Yes, I have visited 1\{rs. Lowe and 1\{r. Lowe. Q. Do you have an opinion as to whether or not that home

would be a suitable home for a young child? A. I think the home would very nice for a child. Q. It has good facilities, that is it is comfortable?

A. Yes, it is very comfortable, the child has his page 71 ~ own room and the room is fixed up very nice.

Q. Based upon your knowledge of Mrs. I.Jowe, that is for as long as you have known her, do you have an opinion as to whether or not she would be a suitable person to lmve custody of her five year ·old child?

A. I do believe she would be. Q. Is there !anything in her conduct since you have known

lwr that gives you any reason to believe otherwise f A. No, as I say I didn't know her before, a.nd I have never

actually seen 1\fr. or Mrs. Lowe take a drink at any time, I have heard they have drank but I don't kno\v anything about that, I couldn't say tuyself. ·

Q. You have heard they have in regard to what thne? A. I couldn't say what time because I really don't know·

what time; I have never seen them take a drink myself, but right now I know there is no drinking in the home and that they do go to church, they attend church frequently·.

l'Ir. Fry: Witness with you.

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36 Supreme Court of Appeals of ·virginia

Mrs. Rose Owens.

CROSS EXAMINATION.

By Mr. Moore: Q. You say you ha.ve lived there about two months f A. Approximately two years. Q. Well then you were living there_ with Mrs. Jones before

she was married, is that right¥ page 72 ~ A. l didn't know any -of them that was living

in there; as I said I just stayed in my own room. I go to work and come home and just stay there and didn't know about the other roomers.

Q. vVasn 't the present J\1rs. Lowe living there unmarried? A. Yes, she was. Q. Before she married Mr. Lowe? A. Yes, she was, as I said-Q. How many roon1s do you have? A. I have a room in the front. Q. Where did Mrs. Jones have her room, the present ~Irs.

LoweY A. This is ~Irs. Jones over here. She had her room

there was our room and there was another room and a bath and her room was on the other side of the bath, "rhich has now been converted into a child's room.

Q. Where does Mr. Lowe sleep? A. Mr. Lowe and Mrs. Lowe have their apartment, thev

have the whole front downstairs and have a bath and the child's room upstairs.

Q. Michael's room would be. upstairs and J\1:r. and 1\irs. Lowe's room would be downstairs?

A. I don't kno"r whether they would make tl1a.t arrangement or not.

Q. That is the way it is set up 1 page 73 ~ A. That is the way it is now, but I don't know

what it will be if they get the child.

1\fr. Moore: That is all.

REDIRECT EXAMINATION.

By Mr. Fry: Q. Your husband is here with you 7 A. Yes, he is. Q. Would he know anything that you don't know f

I

Anna Frances Jones Lowe v. Taylor P. Grasty 3·7

Carl Wood.

A. No, I don't think he would know any more, because we never did have much to do with the others, we were working, and I don't think he could say any more than I could.

• • • • • CARL WOOD,

another witness for the petitioner, being first duly sworn, was examined and testified as follows :

DIRECT EXAMINATION.

By Mr. Fry: Q. Will you state your name Y A. My name is Carl Edward Wood. Q. How old are you, Mr. Wood?

A. I will be thirty-eight this December. page 7 4 ~ Q. And where do you live Y

A. I live at Mc.Lean, Virginia. Q. By whom are you employed Y A. I am self employed. Q. In what business? A. Construction. Q. Are you related in any way to Mrs. Lowe? A. Yes, I am her brother. Q. Did you know Mr. Lowe prior to your sister's Inarriage

to him? A. Yes, I did. Q. Is it true that it was through you that she met him? A. Yes, it is. Q. Being your sister, you, of course, know of her back-

ground? · A. Yes, quite clearly. Q. Has there been any change in her status or conduct,

or habits and so on this year? A. Yes, there has, in fact there has been a tremendous

change and as her brother, and I say this from the bottom of my heart, the girl has made us very proud of the change of the way she has been conducting herself, an9. we all love her for it. Prior to that I bad gotten to a point where I bad almost given up hopes, but today I think she is going to be all right.

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38 Supreme Court of Appeals of Virgin~a

page 75 ~

Mrs. Edith lJ~ood.

Mr. Fry: Witness with you. ~ir. ~tfoore: No questions .

• • • • ]YlRS. EDITI-I vVOOD,

•

another witness for the petitioner, being first duly sworn, was examined and testified as follows:

DIREC:r EXA]YIINATION.

By ~:fr. Fry: Q. ~1rs. vV ood where do you live Y A. Vienna. Q. Are you related to ~Irs. Lowe? A. Sister in law. Q. Your husband is her brother? A. Right. Q. Is he here todayY A. No. Q. Why? A. Well for one thing he is sick and from work he couldn't. Q. How old are you? A. Forty-six. Q. Do you have any children Y A. One. Q. How old is that child Y A. She was twenty in June.

Q. ~irs. \Vood, as sister in law of Mrs. Lowe, page 76 r have you known her for a long while y

A. Twenty-three years. Q. Have you known her since she has con1menced to live

at 9 J{ Street, N.W.? A. Yes. Q. Is there, to your knowledge, any difference in her con

duct now as contrasted with 'vhat it used to be? A. Definitely. Q. Ha.ve you visited in her hon1e that she and her hus

band now occupy and if so will you describe to the Court whether or not that is a nice borne!

A. Yes, and it is very clean. Q. Do you think that is a suitable hon1e to rear a s1nall

child in? A. Yes, it is now·, yes.


Mrs. Edith W.ood.

Q. Do you think that your sister in law, Mrs. Lowe, is a suitable person to raise her five year old child at the present time?

A. Yes. Q. "\Vould you have said that back, say prior to April of

this year? A. No. Q. If she continues to n1aintain l1er present level of con

duct, do you see anything in her whole life or conduct that would be detrimental to a five year old boy~

page 77 ~ A. No, definitely not. Q. Do you have an opinion as to whether or not,

this is simply your opinion, as to whether or not she should be awarded custody of this child 1

A. Well my opinion is she should. I think it would give her that much more to go on to continue as she is doing now, to help her in every way to go on.

Q. Have you taken your daughter to visit in the home f A. Yes, I have, and I am very proud of my daughter and

I certainly wouldn't take my daughter there and have her in my hon1e if everything wasn't all right now, and I n1ean all right.

Q·. You wouldn't have taken your daughter there prior to April of this year¥

A. Around about tl1at time and I wouldn't have taken her there and I clidn 't take her there.

wir. Fry: All right witness with you.

CROSS EXAl\fiNATION.

By Mr. l\foore: Q. Mrs. Wood, what section of "\V ashington is 9 I{ Street? A. It is ne!ar North Capitol, North West. Q. Is that near the business section? A. "\Veil near it, yes; near. Q. You say it is near the Capitol? A. Not so awful far. I go to Washington a lot and I

know bo'v to get around but I am not very good telling about it.

page 78 ~ Q. This is in a business neighborhood? A. Not on the street itself, but is not so awful

far, I don't ren1en1ber seeing any business places on the street.

~;.

~-""


Mt·s. M. B. Walker.

Q. You stated that in your opinion she was not a fit person to have custody of this child in April of this yearY

A. I wouldn't like to say April, but around about that time. No, I didn't approve what she was doing.

Q. vVell, suppose she would resume her former conduct what effect would that have on the welfare of the child Y

A. I have a lot of faith in her, I don't think she will. You want my opinion?

Q. I would like for you to answer my question. A. I cannot hardly answer that. Q. If her conduct was as it was before April of this year,

do you think that would be cond.ucive to the '\Yelfare of the child 7

A. No.

• • • • •

MRS. M. B. vVALKER, another witness for the petitioner, being first duly sworn, was examined and testified as follows :

DIRECT EXAMINATION.

By 1\fr. Fry: Q. 'Vill you state your. name, age, and residence, pleasef

A. Mrs. 1\L B. Walker, 423 Leonard Street, Falls page 79 ~ Church, age forty-two.

Q. Mrs. Walker, are you related to Mrs. LoweY A. I am ·Frances' sister. Q. Have you been familiar 'vith the past history of Mrs.

LoweY A. Yes, sir. Q. "\Vere you familiar with the situation at the time the

child was taken by the Welfare Department here in Orange County?

A. Yes. Q. Did you have any communication with Mrs. Potts, the

Superintendent of the Orange County "\Velfa.re Department? A. I talked to her one time over the telephone. Q. During the course of that conversation was anything

said about the custody of the child? A. I asked if Frances could see the child; she said, no;

she said because there was no possibility she would ever improve. I said, ''Well, there is a possibility that anybody


Mrs. M. B. Walker.

could improve.'' She said, ''She will have Michael over my dead body." That is what she told me.

Q. Did you say anything about your obtaining custody of the child!

A. No, not at that time. Q. Did you ever have any conversation with her in that

regard? page 80 ~ A. No, I was under the impression I couldn't

have the child, though. Q. vVhy were you under that impression! A. Well she had told the people that Michael was staying

with that Frances' family had nothing to do with it whatsoever.

Q. Are you interested in this child? A. Yes, I am, very much so. Q. Is that a letter you. got from 1\IIrs. Potts in connec

tion with this child? A. Yes, but I answered that letter but I didn't send it to

1\IIrs. Potts, I sent it to 1\t[rs. ':Vyat.t. If you will read the letter you will see that is who she told me to send it to, she didn't say a thing ·about getting in touch with her .

• • • • •

page 82 ~

• • • • •

Note: The letter offl'red in evidence was marked as Peti- . ·~~,"-.. tioner 's Exhibit No. 3. ~

Q. 1\Irs. vValker, do you l1ave any children? A. I have a boy. Q. How old is.he? A. He will be thirteen in October. Q. Do you do any work-do you 'vork' A. Yes, I am a secretary. Q. Mrs. 'Valker, are you familiar with the home that Mrs.

Lowe now occupies and maintains Y A. Yes.

page 83 ~ Q. IIave you been in touch with her during the last several months Y

A. Oh, yes. Q. II ave you visited in tl1a t home 7

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42 Supreme Court of Appeals of Virgiura

Mrs. Ill. B. lflalker.

A. I have visited her and she has visited me. Q. Were you also in touch with her prior to her marriag·c

to Mr. Lowe? A. Yes, I was. I was talking to her and trying· to get her

straightened out, but she was drinking heavily. If she had gotten out of that, I felt sure she would straight

en up, I knew she would, I grew up with her and I knew she would be all right as soon as she got out of that environment, and she started straightening up right away. You can see for yourself there is a tren1endous change. She was in the wrong environn1ent.

Q. Well:I\'Irs. Walker, knowing your sister, and being your sister and knowing her, as you have said you do, whaJ do you think about this change 1 Do you think this is another temporary change?

A. No, sir, I definitely think it is permanent. Q. Has she made any such atte1npts in the past and fallen

down on them? A. No, not that I know of. Q. In view of her conduct in the past few months or since

she has begun to straighten up, do you think she page 84 ~ is a fit and proper person to have the custody of

this child? A. Absolutely. Q. The Cou1~t previously took the child away from her,

you kne'v !about the situation. Did you agree or disagree with that?

A. I agreed. Q. You thought that was proper? A. Yes, because she wasn't in a position then-I don't

know whether she was frustrated or what, but I don't think she was in a position to even act as a mother.

Q. And dicln 't act as a mother? A. That is true. Q. Do you think this is a suitable home for a five yeard old

son of hers? A. Yes, I do. Q. Do you think 1\fr. Lowe is a suitable person for him to

be around? A. Yes, I do. Q. There is a considerable difference in their ages. Do

vou think that would have an adverse effect' .. A. No. I have talked to Mr. Lowe quite a lot, but I don't think it would have a great deal of difference. Of course,

I

1'\(

.Anna Frances Jones Lo,ve v. Taylor P. Grasty 43

Carl Wood.

he wouldn't be as active as a younger person, but I don't think it will have a great deal of difference.

Q. You have stated that you have expressed an page 85 ~ interest in this child and did communicate with the

Welfare Department. If this child 'vas placed in the custody of :Nirs. Lowe, would you continued to take an interest in it or not~

A. Oh, yes, indeed. In fact, I would like to have the child myself.

1\'Ir. Fry: All right, witness with you.

CR.OSS EXAJ.\III~ATION.

Bv :Nir. ~ioore: ··Q. 1\:I:rs. "\V alker, if 1\'Irs. Lowe should return to her be

haviour of six months a.go, it would be a pretty bad thing for the child, 1\Hchael, wouldn't it~

A. Yes, it would. Q. And none of us know, do we, for certain that she will

not. return to that type of behaviour~ A. No, I don't, but I do think sl1e should be given a. chance,

even if she were put on probation. I do think the woman deserves a chance, I think anybody does .

• • • • . . page 86 ~ CARL WOOD,

recalled as a witness for the Petitioner, was exmuined and testified as follows:

DIRECT EXAM:INATION.

Bv ~Ir. Frv: 'q. lVIr. 'Vood, I forgot to ask yon this questionA. All right, sir. Q. Have you been interested in this child, 1\fichael? A. Yes, we have to the point that we 'vould like to see the

~l1ild back with Frances and we have today decided-not only today, but when we found Frances was inaking restitution and had changed-

The Court: I cannot hear you.

'.~


Carl H'ood.

A. We felt if Frances had changed, we felt that, the wife and I, we will take the child, if the Court will not award it to my sister.

Q. Here is the question I "rant to ask you, the reason I called you back: If the Court does award the child to l\Irs. Lowe, your sister, will you be in a position and would you be able to render her assistance in becoming and being a proper mother for the child and rearing the child properly?

A. Well now, assistance, do you mean financially or morally?

Q. No, I meant encouraging and helping. A. Yes, either way.

Q. Ho'v many children do you have? page 87 ~ A. I have four.

1fr. Fry : Tba t is all.

CROSS EXAMINATION.

By Mr. Moore: Q. Mr. Wood, you say that you and Mrs. "\Valker were in

terested in this child. What have you done in the past year or two to show that interest Y

A. In what respectY Q. In any respect. A. I mean you will have to boil it down; that covers a big

territory. Q. What have you done for tbe child 1 I-Iave you visited

the childY A. Yes, we saw the little fellow a couple of times, yes. Q. On what occasions and why? A. Well, we saw him prior to the sister's loss of her hus

band and after the loss. I saw him on several occasions andQ. Did you know, Mr. '\Vood, the condition under which

that child was living? A. Yes, we did, and we were very disgusted 'vith Frances,

we were very disappointed in Frances. We approached Frances about the child several times, but we felt at that time that if we had interfered at all that Frances would

perhaps have gone down the drain further than . page 88 ~ she was and what has happened today and in the

past few months-and Mrs. Potts I want to thank you honestly for this, ~ou have made Frances s~e things that .. ~.· .,fl.,,

none of us could possibly do. We have all tried to talk to ..... ·~'·. ,~:~~ ·~i'

Anna Frances Jones Lo,\re v. Taylor P. Grasty 45

Carl· Wood.

Frances and tell her, but until this came along and had shocked her into remorse and she knew that she could lose her boy, that, I think, is what has woke her up, and it has woke her up fo the point that we honestly feel, I, as her brother, and my wife feels the same way, that she has n1ade such a radical change, and it is radical, believe me it is.

Q. Do I understand your answer to my question, which you g·ave some while ago, that you were more interested in Frances than you were in the welfare of the child at that tilue, is that correct f

A. No-No, I was not. Q. You made no effort to remove the child? A. We would have liked to take the little boy into our home

and made a home for him, but at that time we felt like if we had taken the little boy we would have done him harm, because his mother was at that time drinking, and certainly not acting as a lady, ~and if we had taken him she 'vould come .there time and time again and never change.

Q. If there was ever a time to take drastic action that was it, don't you think, Mr. WoodY

A. I don't think so. I feel like this, if the child had been in our home, perhaps-yes, perhaps, it would have

page 89 ~ been good for him then, the immediate month or two or may be a year, but as the child grew older

and his mother continued on at the rate she was going, naturally the boy would have wanted to go with his mother.

Q. What is going to happen if she reverts to her behaviour of six months ago?

A. If Frances decided to go back to the way she was doing, and I don't know whether she will or wont, but as far as I am concerned, the rate of change she has made, she wont but if she could go back, I guarantee you I stand ready to stand by the little boy. I have four children, and financially, I believe, I could support the little fe1low and take care of him, if she decided she wants to go back, and if the Court wants to rule that way I would even take custody of the little fellow now.

Q. Yet neither you nor Mrs. Walker undertook to remove the little fellow from his surroundings Y

A. On one occasion I went down, at that time Frances was drinking right heavy, and we took some little things, and after I saw the little fellow and the condition he was living in and the home and everything, we were both very unhappy, but I felt that if we had gone in there and picked

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46 Supreme Court of Appeals of VirginiJa.

Carl Wood.

the little fello'v up and taken him, we would have had a royal battle on our hands and we didn't want to do it .

• • • • page 90 ~ Mr. Fry : We rest.

The Court: You rest. 1\fr. 1\tioore, you l1ave some evidence I suppose you wish to put on~

1\Ir. 1\{oore: Yes, your Honor. The Court: Gentlemen, the Court has made up its mind in

this case. I don't see any need to proceed with the evidence. Here is the situation. In view of the past history of the

case, we find a mother, who, it is conceded at the bar and by the mother's own witnesses, that she was entirely an unsuitable person to have the custody of this child, and, here, within the last few months, since April of this year, it is now alleged and undertaken to be proved that there has been a reforn1ation, that is the mother has reformed, that she is an entirely difference person from what she had been before, and in that short period of time she has become now a suitable person to have the custody of her infant son, five years of age.

Now, be that as it may. Her witnesses trust, and the Court trusts also, that this reformation may be a genuine

reforn1ation, but it is too short a tin1e for the page 91 ~ Court in considering the best welfare of this child

to adopt that as a permanent reformation, and the Court would certainly have to have a longer period of time for the mother to show and to demonstrate her suitability to have the custody of this son.

Now, this is a ha,beas corpu.s proceeding. Questions of law of former proceedings l1ave been raised in this petition, as also has been raised the question regarding the suitability of the mother to have the custody of the child. Now, the purpose of habeas corpus is not to correct errors of record, if indeed there have been any, and I don't kno'v that there have been any, l1ut a writ of this nature is to determine whether the parent is entitled to have the custody of the child. The Court finds she is not entitled at this thne to the custody of the child, and so, decides, and the writ is dismissed.

1\h·. Fry: 1\!Iay it please the Court, we except to the ruling of the Court. We would like to point out something that tl1e Court didn't mention in its opinion, it says it is too short

·~··i ~41


a time, yet the Court has undertaken by its previous order, which we contest the validity of, giving adoptive

page 92 ~ rights, and it is stated by counsel that the child is out for adoption, that means that we may not have

additional time in which to show the passage of thne is sufficient. 'y e, of course, disagree with the Court's ruling confirming that prior decree for reasons stated, we think it was erroneous or invalid, but I just want to point out that the Court's indication that she must demonstrate her reformation a longer time, when to give affect to the Court's prior order there cannot be any longer time. It is a dilemma that I don't know whether the Court has thought about.

The Court : You can get your exception in the record. 1\fr. Fry: I take it that the Court is denying the writ

regarding the procedural matters. The Court: I am dismissing the writ, that is right.

Note: Court was thereupon adjourned, but later on the same date counsel for petitioner presented their 'vritten n1otion to the Court, and the following proceedings were had:

The Court: }Jr. }foore, do you want to have anything to say in the record about this?

pag·e 93 ~ 1\fr. 1\foore: If they are going to say anything, I would like to have something to say.

1\fr. Higginbotham: Judge, I would just like to say that the reason we want this motion to be granted is that we would not be so concerned except for this matter of adoptive rights. As I understand the law, if .the Welfare Department simply had custody of this child that we could !at any time come in and petition the Court, but with the adoptive rights once those rights are exercised and become final and the adoption becomes final, we think that Mrs. Lowe's rig·ht would be forever barred, and that is what we think the Court should not permit; we think the Court ought to l1ave the opportunity to recover the custody.

We understand that the child will have been in the adoptive home a year this December and at the end of the year they can get a final adoption order and after that it 'viii be too late for 1\frs. Lowe to pursue any remedy. That is the reason 've are making this motion.

The Court: Wbere do you think the adoptive parents · · ,,:·~;;.:. live 11

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48 Supreme Court of Appeals of Virginita

Mr. Higginbotham: I would like to bring that page 94 ~ up. 'Ve would like for that information to be made

available to the Court and then to counsel, and we will aver that we will not disclose that information to Mrs. Lowe.

The Court: I just wondered. I don't think that is a part of this proceeding. I just wondered if it was in the jurisdiction of this Court.

~Ir. Higginbotham: That is the point, if it is not in the jurisdiction of the Court we will not have any notice and will not have the right to go there and intervene within the 12 months period. I have already requested that the Welfare Department give us that information and they have refused. So, we are now asking the Court to make·-that information available to us.

The Court: On that last point I don't know how I can in a habeas corpus proceeding.

1\Ir. Higginbotham: I don't lmow that you can in this proceeding, but the former proceeding is still in the breast of the Court, because whenever the custody of the Court comes through the Juvenile and Domestic Relations Cour_t, I don't know· what the order says, but the statute gives the Court control over it.

The Court: On this motion right here, I would page 95 ~ have to deny that because this proceeding has

terminated. There is no question of a continuance of a habeas corpus matter. I have heard all the evidence introduced at this time and decided that on the evidence introduced the writ should be dismissed. It is too late for any continuance. I would have to deny that.

Mr. Higginbotham: To the action of the Court in dismissing the petition for a writ of habeas corpus and for overruling the motion for a continuance for 60 days, counsel for the petitioner object and except on the ground that the san1e are co11trary to the law and the evidence, and for other errors appearing on the face of the record .

• • • • • A Copy-Teste:

H. G. TURNER, Clerk.

),

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INDEX TO RECORD

Pag·e

Writ of Error Awarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Order--February18,1960 ............................. 3 Final Order--April5, 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Judgment--September 28, 1960 . . . . . . . . . . . . . . . . . . . . . . . . 4 Notice of Appeal and Assignments of Error . . . . . . . . . . . . . 5 'Vitnesses:

Anna Frances Jones Lowe . . . . . . . . . . . . . . . . . . . . . . . . . 6 Gurney Jack Lowe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Mrs. Arlene Morehan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Mrs. Hattie Lowe ................................. 30 Mrs. Thelma Tate ................................ 32 Mrs. Rose Owens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Oarl Wood .................................... 37, 43 ~irs. Edith Wood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Mrs. M. B. Walker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Proceedi11gs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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