State ex rel. Turner v. McClure, No. 12914

• Court: Supreme Court of West Virginia
• Writing for the Court: BERRY; In this original proceeding in prohibition the petitioner, Ruby Turner, filed a petition in this Court seeking to prohibit the Honorable James G. McClure; CALHOUN
• Citation: 153 W.Va. 855,173 S.E.2d 167
• Parties: STATE ex rel. Ruby TURNER, etc. v. James G. McCLURE, Judge, Circuit Court, Brooke County, et al.
• Decision Date: 26 March 1970
• Docket Number: No. 12914

Page 167

173 S.E.2d 167 153 W.Va. 855 STATE ex rel. Ruby TURNER, etc.
v.
James G. McCLURE, Judge, Circuit Court, Brooke County, et al. No. 12914. Supreme Court of Appeals of West Virginia. Submitted Feb. 3, 1970.
Decided March 17, 1970.
Dissenting Opinion March 26, 1970.

Syllabus by the Court

Although a person may be indicted for the offense of contributing to, encouraging or tending to cause the neglect of any child under Code, 49--7--7, as amended, the indictment [153 W.Va. 856] must use the words of the statute as well as alleging the specific acts or conduct constituting the offense.

Thomas D. Hagg, Donell, Tarr & DeLaMater, Weirton, for relator.

Herman J. Rogerson, Prosecuting Atty., Brooke County, for respondents.

BERRY, Judge.

In this original proceeding in prohibition the petitioner, Ruby Turner, filed a petition in this Court seeking to prohibit the Honorable James G. McClure, Judge of the Circuit Court of Brooke County, West Virginia, and Herman Rogerson, Prosecuting Attorney of Brooke County, West Virginia, from proceeding with the prosecution of the petitioner upon an indictment returned by the 1969 November Term of the Brooke County Grand Jury. The indictment charged that the petitioner unlawfully neglected her two year old child by 'omitting or committing' certain acts that proximately contributed to the death of the child.

The rule was granted in this proceeding on December 16, 1969, returnable January 20, 1970, and the case was continued to February 3, 1970, at the request of the parties and by leave of the court at which time the case was submitted for decision on briefs without argument.

Page 168

The petitioner filed two written motions in the trial court to quash the indictment on the grounds that it did not charge a crime either under Code, 61--8--24, as amended, or Code, 49--7--7, as amended, both dealing with neglect of a child.

It is the contention of the petitioner that the offense should have been charged under Code, 61--8--24 as [153 W.Va. 857] amended, and that the indictment was fatally defective because it did not allege that the petitioner Wilfully neglected the child as required by the wording of the statute. It is the contention of the respondent, Rogerson, that the indictment was drawn under the provisions of Code, 49--7--7, as amended, and that under said statute it was not necessary to allege wilful neglect.

The petitioner also contends that even if the charge could be brought under Code, 49--7--7, as amended, the indictment is duplicitous and is not drawn in the wording of this statute and is therefore, in any event, void.

The motions to quash the indictment were overruled by the trial court and this proceeding was instituted here by the petitioner.

The pertinent part of the indictment reads as follows: 'That Ruby Turner * * * did unlawfully * * * and at the time said infant being in Her care, custody and control, unlawfully Neglected said infant by omitting or committing the following acts which Proximately contributed to the death of said infant * * *.' (Emphasis supplied.)

Code, 61--8--24, as amended, reads in part as follows: '* * * any person, having the Care, custody or control of any minor child, who shall Wilfully abandon or Neglect the same, shall be guilty of a misdemeanor * * *.' (Emphasis supplied.)

It will be noted that the words of this statute dealing with care, custody and control are the exact words to be used in an indictment to charge the offense of wilful neglect. In other words, to constitute the offense under this section the infant or minor child must be in the care, custody or control of the person charged.

Code, 49--7--7, as amended, reads as follows: 'A person who by any act or omission Contributes to, encourages or tends to cause the delinquency of neglect of any child, shall be guilty of a misdemeanor * * *.' (Emphasis supplied.)

[153 W.Va. 858] It will be noted that to constitute the offense under this section in Chapter 49 the child does not have to be in the care, custody or control of the person charged to be guilty of the offense. The offense under this statute Is any act or omission that contributes to, encourages or tends to cause the delinquency or neglect of any child.

This statute as originally written in 1936 did not have the word Neglect in it. This word was added by the legislature in 1941. However, the following section, Code, as amended, 49--7--8, which was not amended in 1941, and which deals with the proof necessary for a conviction of the offense, reads as follows: 'In finding a person guilty of contributing to the delinquency of a child, It shall not be necessary to prove that the child has actually become delinguent, if it appears from the evidence that the accused is guilty of conduct or of an act of neglect or omission of duty on his part toward the child which would tend to bring about or encourage the delinquency.' (Emphasis supplied.)

It can readily be seen that the indictment is not couched in the words of the statute which the respondent Rogerson contends it was brought under. The indictment alleges That the accused unlawfully neglected the infant by omitting or committing certain acts which proximately contributed to the death of said infant, and not that she by such acts Contributed to, encouraged or tended to cause the delinquency or neglect of said child, the words contained in the statute to constitute the offense under Code, 49--7--7, as amended.

Page 169

It would appear that under Code, 49--7--7, as amended, it would not be necessary to prove that a child was actually neglected in order to convict an accused of the offense under this section of the statute, but merely to prove that the accused was guilty of conduct that contributes to, encourages, or tends to cause any neglect. This appears to be directed toward a different offense than that charged in the present indictment of omitting or committing acts which contributed to the death of the infant.

[153 W.Va. 859] In the case of State v. Harris, 105 W.Va. 165, 141 S.E. 637, dealing with the offense under Code, 49--7--7, before it was amended, this Court held that criminal intent was not a necessary element of the offense and it was not the act but the tendency to cause the delinquency that constituted the offense.

In the case of State v. Westfall, 126 W.Va. 476, 29 S.E.2d 6, which was decided after Code, 49--7--7 was amended, it was held that the indictment under this statute was sufficient, but the indictment in that case contained in substance the wording of the statute, that is, that the accused caused, encouraged, and contributed to the delinquency of the infant.

The case of State v. Zitzelsberger, 129 W.Va. 229, 39 S.E.2d 835, which was decided after the statute (Code, 49--7--7) was amended, held that in drawing an indictment under this statute, the use of the statutory words should be supplemented with specific acts constituting the offense.

The indictment in the instant case charges the accused in the disjunctive that she omitted Or committed the acts. It has been held that unless the words in the disjunctive mean the same thing an indictment charging acts in the disjunctive is demurrable. State v. Stollings, 128 W.Va. 483, 37 S.E.2d 98; State v. Loy, 146 W.Va. 308, 119 S.E.2d 826.

Although it appears that a person can be indicted for the offense of contributing to, encouraging or tending to cause the neglect of any child under Code, 49--7--7, since it was amended in 1941, such indictment must use the words of that statute and allege the specific acts and not use the words of another statute together with confusing allegations in connection with the offense intended to be...