Boaze v. Commonwealth

• Decision Date: 16 January 1936
• Citation: 165 Va. 786
• Parties: GARLAND LEE BOAZE v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 786

165 Va. 786

GARLAND LEE BOAZE v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Staunton.

January 16, 1936.

Present, Campbell, C.J., and Holt, Hudgins, Gregory and Eggleston, JJ.

1. PARENT AND CHILD — Duty of Father to Support Infant Child. — It is a father's legal and moral duty to support his dependent infant children.

2. JURY — Waiver — Concurrence of Commonwealth's Attorney and of Court Entered of Record Is Essential. — Under section 8 of the Bill of Rights, providing that in criminal cases, if the accused plead not guilty, with his consent and the concurrence of the Commonwealth's attorney and of the court entered of record, a jury may be waived, the concurrence of the Commonwealth's attorney and of the court all entered of record is necessary.

3. JURY — Waiver — Consent of Accused Must Be Made Manifest. — Under section 8 of the Bill of Rights, providing that in criminal cases, if the accused plead not guilty, with his consent and the concurrence of the Commonwealth's attorney and of the court entered of record, a jury may be waived, it is necessary that the consent of the accused be in some manner made manifest. Something more than simple silence must appear.

4. PARENT AND CHILD — Nonsupport — Jury — Waiver — Case at Bar. — In the instant case, a prosecution for failure to support, accused failed to comply with the provisions of a divorce decree requiring him to pay ten dollars a month for support of his two infant children; was convicted by a trial justice, and on appeal to the circuit court was again convicted. In the circuit court accused was tried without a jury, although consent of the accused did not appear nor was there anything to show that the attorney for the Commonwealth consented, nor the concurrence of the court, as required by section 8 of the Bill of Rights, beyond the fact that it acted without a jury.

Held: Error.

5. DIVORCE — Decree — Provision for Support of Children — Power of Court. — A court has ample power, under section 5111 of the Code of 1930, to enter a divorce decree providing for the support of infant children, and to change it to meet changing conditions.

6. DIVORCE — Decree — Provision for Support of Children — Enforcement. — A court has ample power in contempt proceedings to enforce its order, in a divorce decree, providing for the support of infant children.

7. DIVORCE — Husband and Wife — Nonsupport — Election of Remedies — Case at Bar. — In the instant case, a prosecution for non-support, accused failed to comply with the provisions of a decree of divorce directing him to pay ten dollars per month for the support of his two infant children; was convicted by a trial justice upon a warrant charging failure to support, under section 1936 of the Code of 1930, and upon appeal to the circuit court was again convicted and sentenced to work twelve months on the public roads, sentence to be suspended if he paid twenty dollars per month for the support of the children until the amount in arrears was paid, and ten dollars per month thereafter.

Held: Error. The judgment, so far as it provided for the support of the children, was substantially but an affirmation of what had already been done. The wife elected to proceed under the divorce decree and should abide by her election.

Error to a judgment of the Circuit Court of Campbell county.

The opinion states the case.

Hester & Hester, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.

HOLT, J., delivered the opinion of the court.

Garland Lee Boaze, who was charged with the commission of a misdemeanor, has been convicted and sentenced. This is the background of his conviction.

On December 19, 1933, he was divorced from his wife. The custody of their two infant children was given to her and he was directed to pay to the mother for their support ten dollars a month from the first of December, 1933, so long as they remained under age and unmarried.

He failed in this and in July, 1934, a rule was issued requiring him to show cause why he should not be punished, etc. For failure to comply with the provision of said decree he was sent to jail for ten days and served his time. Thereafter he continued in default and on the nineteenth of January, 1935, this warrant was issued: "State of Virginia,

"County of Campbell, To-Wit:

"To any Police Officer or Constable of the said County:

"Whereas, Hattie Davis Boaze of the said County has this day made complaint and information on oath before me, W. H. Overbey, Trial Justice of the said County, that Garland Lee Boaze in the said County did on the day of , 1934, unlawfully fail to provide for and support his two infant children, to-wit: Harold, age 9 and Clarance, age 6.

"These are therefore, to command you in the name of the Commonwealth, to apprehend and bring before the said Trial Justice, the body of the said Garland Lee Boaze to answer the said complaint and to be further dealt with according to law. And you are also directed to summon , as witnesses.

"Given under my hand and seal, this 19 day of January, 1935.

"W. H. Overbey, T.J. (Seal)."

He was convicted by a trial justice and from his sentence appealed to the Circuit Court of Campbell county and was again convicted, its judgment being:

"It is therefore ordered that said Garland Boaze be and he is hereby sentenced to work on the public roads of the Commonwealth, with the State Convict Road Force, for a term of twelve months; but execution of this sentence is suspended upon condition that said Garland Lee Boaze shall pay to his wife for the support of his infant children by her, the sum of twenty dollars each and every month, beginning with July, 1935, until the amount due and in arrears has been paid, and thereafter, the sum of ten dollars per month for the support and maintenance of said children."

It is a father's legal and moral duty to support his dependent infant children. Bruce Dean, 149 Va. 39, 140 S.E. 277.

Code, sec. 1936, as amended by Acts 1922, ch. 485, has in it this provision:

"* * * Any parent who shall desert or wilfully neglect or refuse or fail to provide for the support and maintenance of his or her male child under the age of sixteen years, female child under the age of seventeen years, or child of either sex of whatever age who is crippled or otherwise incapacitated for earning a living (such wife, child or children being then and there in destitute or necessitous circumstances), shall be guilty of a misdemeanor, * * *."

The conviction here does not rest upon desertion but upon failure to support.

It will be observed that the judgment appealed from fixes no time at which these payments are to end, while the statute on which it rests makes provision for the support of male children until they are sixteen years old and for female children until they are seventeen. But its major error comes from the fact that the accused was tried without the intervention of a jury.

Section 8 of the Bill of Rights in the Constitution of 1902 reads:

"That no man shall be deprived of his life, or liberty, except by the law of the land, or the judgment of his peers; nor shall any man be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense, but an appeal may be allowed to the Commonwealth in all prosecutions for the violation of a law relating to the State revenue.

"That in all criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the...