Cruikshank v. Duffield

• Decision Date: 29 September 1953
• Docket Number: No. 10615,10615
• Citation: 77 S.E.2d 600,138 W.Va. 726
• Court: West Virginia Supreme Court
• Parties: CRUIKSHANK et al. v. DUFFIELD et al.

Page 600

77 S.E.2d 600

138 W.Va. 726

CRUIKSHANK et al. v. DUFFIELD et al.

No. 10615.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 1953.

Decided Sept. 29, 1953.

Syllabus by the Court.

1. Chapter 73 of the 1925 Acts of the Legislature, Code, 48-8-4, as amended, commonly referred to as the nonsupport statute, is not violative of provisions of the State Constitution relating to due process of law, trial of criminal proceedings upon presentment or indictment, or trial by jury.

2. Section 4 of Chapter 73 of the 1925 Acts of the Legislature, Code, 48-8-4, as amended, does not vest in circuit courts jurisdiction to enter judgment against a surety signing the appearance bond therein provided for in an amount in excess of the penalty fixed in the bond, or in excess of the aggregate amount of support payments ordered by the court for the period between the date of the judgment of the justice and the date of the judgment of the circuit court.

J. W. Maxwell, Beckley, for petitioners.

John G. Fox, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for respondents.

GIVEN, Judge.

We have in this original proceeding in prohibition questions attempted to be raised in a proceeding upon a writ of error granted by this Court, which writ was dismissed as having been improvidently awarded. The facts are carefully and fully stated in the opinion filed in that proceeding, State v. Cruikshank, W.Va., 76 S.E.2d 744. For convenience the facts may be recapitulated here.

One of petitioners, Guy Clarence Cruikshank, was proceeded against, by complaint and warrant, before a justice of the peace in Clay County, under the nonsupport statute, and was convicted by the justice of nonsupport of his two minor children. The judgment of the justice required the defendant to pay monthly sums for support of the children. He appealed from the judgment of the justice, executing the appeal bond required by Code, 48-8-4, as amended, which bond was also executed by the other petitioners herein, Stella Cruikshank and Paul Cruikshank, as sureties.

Upon trial in the circuit court, before a jury, defendant was again convicted of the offense charged. The judgment of the circuit court, in so far as material here, reads: '* * * and it is, therefore, considered by the Court that the said Guy Clarence Cruikshank and Stella Cruikshank and Paul Cruikshank, the last two of whom signed the appeal bond given by the defendant in this case as his surety therein, do pay to the said Ruby Olive Cruikshank, the mother of the two children, Karen Lee Cruikshank and Phyllis Irene Cruikshank, for the support and maintenance of said children and until the further order of this Court, the sum of $20 per month for each of said children, said payments to begin as of the tenth day of December, 1951, the aggregate of said payments due to this date amounting to $240.00, and the next and subsequent payments of $40.00 each ($20.00 per month for each of said children) to be made on or before the tenth day of July, 1952, and monthly thereafter until the further order of this Court, or until said children severally reach the age of six-teen years; and that the said defendant and his said sureties do further pay to the said Ruby Olive Cruikshank her costs in and about the prosecution of this action before the Justice and in this Court expended, including the usual statute fee of $10.00.

'On motion of plaintiff an execution is awarded here for the collection of said $240.00 and the costs aforesaid, if the said $240.00 and costs are not paid on or before July 1, 1952.'

Petitioners contend that the judgment entered by the circuit court is void, for the reason that the nonsupport statute is unconstitutional. The contention that the statute is unconstitutional is based substantially upon these premises: That it is in violation of the due process of law provision found in Section 10 of Article III of the State Constitution; that it is in violation of the provision of Section 4 of that article relating to trial of criminal proceedings upon presentment or indictment; and that it is in violation of the provisions of Section 14 of that article relating to trial of certain crimes by a jury of twelve men. Essentially, the question raised by these contentions is the same: Has the Legislature, under the Constitution, power to vest jurisdiction of the offense charged in justices of the peace?

Section 4 of Article III of the State Constitution provides that '* * * No person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury. * * *' Section 28 of Article VIII of the State Constitution provides that '* * * The jurisdiction of justices of the peace shall extend throughout their county; they shall be conservators of the peace and have such jurisdiction and powers in criminal cases as may be prescribed by law. * * *'

In Tomlinson v. Cunningham, 106 W.Va. 1, 144 S.E. 570, this Court pointed out that the phrase 'not cognizable by a justice', used in the above quoted constitutional provision, includes '* * * not only those cases cognizable by a justice at the time of the adoption of the Constitution, but also those made cognizable by a justice by subsequent legislative action * * *'. See State v. Goudy, 94 W.Va. 542, 119 S.E. 685; State v. Harris, 88 W.Va. 97, 106 S.E. 254; and Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653. Moreover, the language used in Section 28 of Article VIII, to the effect that justices of the peace shall 'have such jurisdiction and powers in criminal cases as may be prescribed by law', constitutes express authority to the Legislature to extend criminal jurisdiction of justices of the peace to offenses other than those of which justices of the peace had jurisdiction at common law. We do not here attempt to point out limitations of that power imposed by other provisions of the Constitution.

Petitioners argue that the requirement of the bond provided for in Code, 48-8-4, as amended, constitutes such an impediment to or a clogging of the right of a defendant to appeal from a judgment of a justice as to amount to a denial of the right to a trial by jury, since that right can not be accorded defendant by the justice. See State v. Emsweller (Jenkins), 78 W.Va. 214, 88 S.E. 787; and Vetock v. Hufford, 74 W.Va. 785, 82 S.E. 1099. But does the nonsupport statute unreasonably impede or clog the right of appeal? We think not. A careful examination thereof reveals that it requires nothing more of a defendant to obtain an appeal from a judgment of a justice than to demand or request such appeal within a reasonable time. The bond required by that section, and the bond executed in the instant case, required only of the defendant an appearance in the circuit court. The giving of the bond permitted the release of defendant from legal custody; but the right of appeal was in no manner affected by the requirement of the statute relating to the bond. Defendant could have refused to execute the bond and still have obtained the appeal. If bond had not been executed he would have remained in legal custody. Legal custody, however, is one thing, and the right of appeal another. Vetock v. Hufford, supra; Jelly v. Dils (Smith), 27 W.Va. 267; Moundsville v. Fountain, 27 W.Va. 182; 50 C.J.S., Juries, § 132.

At the time of the Revolution justices of the peace of the several colonies exercised jurisdiction over more than two hundred offenses, including qui tam proceedings, then prevalent in the colonies. Some of such offenses were of the same general nature as the offense charged in the instant case. For example, a father who neglected to furnish support to his minor children, or threatened to do so, was guilty of an offense. A mother of an illegitimate child could be imprisoned by a justice until she disclosed the name of the father of the child, or gave security for its support. Jurisdiction of such offenses was continued to be exercised by justices of the peace after the adoption of Constitutions by the several states and commonwealths, and after the adoption of the Federal Constitution. See Duffy v. People, 6 Hill, N.Y., 75; Katz v. Eldredge, 97 N.J.L. 123, 117 A. 841; State v. Loden, 117 Md. 373, 83 A. 564, 40 L.R.A., N.S., 193; Ragsdale v. City of Danville, 116 Va. 484, 82 S.E. 77.

The question as to what constitutes such a clogging of the right of appeal from a justice, in such cases, has given courts great difficulty. They are not now unanimous in their holdings. In Miller v. Commonwealth, 1892, 88 Va. 618, 14 S.E. 161, 342, 979, 15 L.R.A. 441, the Virginia Court held an act unconstitutional which attempted to vest jurisdiction in a justice, notwithstanding a defendant convicted thereunder had an absolute right of appeal, not unreasonably clogged. The holding was overruled by the decision in Brown v. Epps, 1895, 91 Va. 726, 21 S.E. 119, 27 L.R.A. 676. In considering the questions involved, a very helpful article by Professor Leo Carlin, titled 'The Right of Trial by Jury in West Virginia', may be found in 33 West Virginia L.Q. 183. Another very helpful article by Professor Felix Frankfurter, now Justice of the Supreme Court of the United States, and Thomas G. Corcoran, titled 'Petty Federal Offenses and the Constitutional Guarantee of Trial by Jury', will be found in 39 Harvard Law Review, 917. See also Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 33 L.Ed. 223; Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843.

For another reason we hold that the statute under consideration is not unconstitutional. By Chapter 13 of the 1901 Acts of the Legislature, the offense of nonsupport was first made a criminal offense in this State. By that act justices of the peace were vested with jurisdiction of the offense. By Chapter 51 of the 1917 Acts, jurisdiction was withdrawn from justices of the...