Lovisi v. Com.

• Decision Date: 24 April 1972
• Parties: , 75 A.L.R.3d 928 Aido Mario LOVISI v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 206

188 S.E.2d 206

212 Va. 848, 75 A.L.R.3d 928

Aido Mario LOVISI v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

April 24, 1972.

Certiorari Denied June 19, 1972. Sec 92 S.Ct. 2469.

Theodore A. Boyce, Virginia Beach (Gerald Rubinger, Parker, Rubinger & Jacobson, Virginia Beach, on brief), for plaintiff in error.

Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

COCHRAN, Justice.

Aldo Mario Lovisi appeals from a judgment order entered upon a jury verdict finding him guilty of a violation of Va. Code Ann. § 40--112 (Repl.Vol.1953) and imposing a sentence of twelve months in jail and payment of a $1,000 fine.

We are first concerned with the question whether § 40--112 is applicable to Lovisi under the facts of this case. The statute, now Va.Code Ann. § 40.1--103 (1970), reads as follows:

'Cruelty and injuries to children.--It shall be unlawful for any person employing or having the custody of any child willfully or negligently to cause or permit the life of such child to be endangered or the health of such child to be injured, or willfully or negligently to cause or permit such child to be placed in a situation that its life, health or morals may be endangered, or to cause or permit such child to be overworked, tortured, tormented, mutilated, or cruelly beaten or cruelly treated. Any person violating this section shall be guilty of a misdemeanor.'

Lovisi was charged with violating § 40--112 as to Eugenia Acreee, twelve years of age, who was his stepdaughter.

At the trial Eugenia testified that on or about March 31, 1969, at Lovis's request, she used his Polaroid camera to take photographs of certain sexual acts, some perverted, between her mother, Lovisi and another man. Eugenia further testified that she and her sister, Carolyn Acree, had witnessed and, at Lovisi's direction, photographed similar acts performed by the same three persons on others occasions. Carolyn, thirteen at the time of trial, corroborated this testimony. Photographs, identified by the sisters and introduced in evidence, reveal unspeakably depraved conduct on the part of the three adults.

The record shows that the mother received custody of the Acree girls when she and their father were divorced; that she married Lovisi in 1968; that Lovisi never adopted the children but provided food, shelter and clothing for them after they came to make their home with him; and that Lovivi was very strict with Eugenia and Carolyn and was disliked by them.

Lovisi did not testify. His wife, testifying in his defense, denied that her daughters had seen or photographed the acts of debauchery in which she, Lovisi and their friend had engaged and asserted that the photographs had been taken with a selftimer.

Lovisi contends that § 40--112, under which he was convicted, is inapplicable to him because there was no evidence that he either employed or had custody of Eugenia Acree. We agree that there was no evidence that Lovisi employed the child. However, there was sufficient evidence that he had custody of Eugenia within the meaning of the statute to submit that issue to the jury.

This statute, while enacted and codified as part of the Child Labor Law, has been classfied as a 'cruelty to children statute' which extends not only to employers but also to parents and those standing In loco parentis who have permanent or temporary custody of children. Paulsen, The Legal Framework for Child Protection, 66 Colum.L.Rev. 679, 682--83 (1966).

Lovisi is entitled to the benefit of a strict construction of § 40--112, which is a criminal statute. Johnson v. Commonwealth, 211 Va. 815, 819, 180 S.E.2d 661, 664 (1971). But words are to be given their ordinary meaning unless it is apparent that the legislative intent is otherwise. Spindel v. Jamison, 199 Va. 954, 957, 103 S.E.2d 205, 208 (1958). Where the statutory language is clear we will not look for ambiguities to resolve. Anderson v. Commonwealth, 182 Va. 560, 565--566, 29 S.E.2d 838, 840--841 (1944).

The word 'custody' has been defined generally as '(t)he care and keeping of anything'. Black's Law Dictionary 460 (4th ed. 1951). In its language § 40--112 is unambiguous, justifying no limitation of the meaning of 'custody' to legal custody. To give it such a restrictive definition would eliminate, among others, teachers, athletic instructors and baby-sitters, all of whom might have temporary custody of children, from the purview of the statute. Moreover, the language of Va.Code Ann. § 40--96.1 (Cum.Supp.1968), now Va.Code Ann. § 40.1--79 (1970), implies that § 40--112 is applicable to a person standing In loco parentis. We conclude that the custody provision in the...