Fisher v. Sommerville

• Decision Date: 14 January 1919
• Parties: George E. Fisher v. J. B. Sommerville, Judge, etc. et al
• Court: West Virginia Supreme Court

83 W.Va. 160

George E. Fisher

v.J. B. Sommerville, Judge, etc. et al

Supreme Court of Appeals of West Virginia.

Submitted January 8, 1919.

Decided January 14, 1919.

1. Husband and Wife Abandonment--Penal Statute Constitu-

tionality.

In so far as the provisions of chapter 51 of the Acts of the Legislature of 1917, Secs. 16c(l) to 16c(8) of ch. 344 of Barnes' Code of 1918, provide for enforcement of the duty of a husband to provide for the support of his destitute wife and children, pending a criminal proceeding against him for his failure to support them, without just cause, they are constitutional and valid, (p. 163).

2. CovRTS Equity Jurisdiction Tower of Legislature.

The legislature is not inhibited by anything in the constitution from extending the powers and jurisdiction of the law courts to subjects of equity cognizance. (p. 164).

3. Jury Eight to Jury Trial Abandonment of Wife.

The constitution does not guarantee to a husband right of trial by jury on a charge of inexcusable failure to support and maintain his wife and children, nor on an issue as to what amount he should pay for such purpose. (p. 164).

1. Husband and Wife Criminal Proceeding for Abandonment Proceeding fo Support Merger.

Although said statute authorizes initiation of the proceeding for support and a criminal prosecution at the same time, in the same court and on a single complaint, it does not merge or consolidate the two proceedings into one, nor make the former an aid to the latter. (p. 164).

5. SAME Abandonment Proceedings Statute.

The complaint and the warrant issued thereon, under it, confer jurisdiction to enforce payment of money for temporary support and to recognize or commit the accused pending an inquest by the grand jury, as to his probable guilt of the criminal offense charged therein. (p. 165).

6. INDICTMENT AND InfOrmation Jury Indictment Necessity.

Properly construed said statute accords to the accused the benefit of the constitutional guaranties against trial without an indictment and otherwise than by a jury, in respect of the crimnal offense it creates. (p. 165).

Prohibition by George E. Fisher against J. B. Sommerville. Judge, and others.

Writ refused.

Martin Brown, for petitioner.

E. T. England, Attorney General, Henry Nolte, Assistant Attorney General, and James D. Parriott, for respondents.

pofpenbarger, JUDGE:

Upon the assumption that the provisions of Chapter 51 of the Acts of the Legislature of 1917, Sec. 16c (1) to Sec. 16c (8), Ch. 144, Barnes' Code 1918, authorizing the juvenile, circuit, intermediate and criminal courts to convict any husband who shall, without just cause, desert or wilfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitious circumstances, or any parent who shall, without lawful excuse, desert orwilfully neglect or refuse to provide for the support and maintenance of his or her ligitimate or illegitimate child or children under the age of sixteen years, in like circumcumstances, of a misdemeanor punishable by a fine or imprisonment or both, and to substitute for such punishment. in its discretion, an order requiring payment of money for the support and maintenance of the neglected person, is unconstitutional because it fails to provide for inquiry and indictment by a grand jury, as a condition precedent to right of trial and punshment, the plaintiff seeks a writ of prohibition to inhibit and restrain the Circuit Court of Marshall County from proceeding against him under said statute.

The statute provides for the making of an order of arrest by the court or the judge thereof, founded upon a complaint to be filed by the wife, child, children or any other person. Under this order, a warrant is issued, commanding the apprehension of the accused and his production in court or before the judge thereof in vacation, to answer the complaint and to be further dealt with according to law. As to any inquiry or indictment by a grand jury, the act is silent.

The proceeding against the plaintiff", instituted by his wife under this statute, has not progressed to final judgment. Being advised of the issuance of the warrant, he voluntarily appeared and resisted it, denying the validity of the statute and also his liability under it, in case of the overruling of his contention as to its validity, on the ground of desertion on the part of the complainant. His motion to quash the complaint and warrant having been overruled, he plead not guilty, and caused to be entered upon the record a declaration of his willingness at all times to support his wife, the actual provision of such support, her rejection thereof through the influence of her parents and his offer to take her back to his home. Thereafter, the court, on the hearing of testimony, required him to enter into a recognizance to appear on the first day of the next regular term of the court to answer an indictment in the event of the finding thereof by the grand jury. A few days later, the wife, after notice, filed a petition in the cause praying an order requiring him to pay her money for her support, under the provision of the statute empowering the court to "Enter Such temporary order as may seem just, providing for the support of the deserted wife or children, or both, pendente lite." A motion to quash and a demurrer thereto having been overruled, the court, after considering the evidence previously taken on the return of the warrant, and the offer made by the husband, entered an order requiring him to pay the wife $30.00 per month during the pendency of the proceeding. It is to prevent the enforcement of this order that he seeks a writ of prohibition.

The primary and ultimate purpose of the statute is coercion of provision for support of deserted wives and children by those upon whom the law places the burden of their support, when they, being able to provide it, refuse to do so. Jurisdiction for such purpose, as between husband and wife, has been held and exercised by the courts of equity for centuries. They alone, under the common law and equity...