Cruikshank v. Duffield, No. 10615

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

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.

Page 601

GIVEN, Judge.

We have in this original proceeding in prohibition questions attempted to be raised in a proceeding upon [138 W.Va. 727] 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 [138 W.Va. 728] 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

Page 602

cases cognizable[138 W.Va. 729] 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. [138 W.Va....