State ex rel. Turner v. McClure

Decision Date26 March 1970
Docket NumberNo. 12914,12914
Citation153 W.Va. 855,173 S.E.2d 167
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Ruby TURNER, etc. v. James G. McCLURE, Judge, Circuit Court, Brooke County, et al.

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 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.

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 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.)

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.

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.

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 charged.

For the reasons stated herein, the writ prayed for is granted.

Writ granted.

CALHOUN, Judge (dissenting):

In this prohibition proceeding, the relator asserts that the indictment against her is void and she therefore prays that the eminent judge of the trial court, and also the prosecuting attorney, be prohibited 'from proceeding with the prosecution of the petitioner upon the indictment * * *.'

In order to warrant the granting of the prayer of the petition, we must determine that the indictment is not merely defective or voidable upon a direct attack, but rather that it is absolutely void in the sense that the trial court has no 'jurisdiction' to proceed with a prosecution under the indictment. It is obvious that the trial court has jurisdiction of the person. It is obvious that the trial court has jurisdiction of the subject matter and is not exceeding its legitimate powers unless the indictment is void.

Under Code, 1931, 53--1--1, as amended, prohibition lies 'when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.' If an indictment is void, the court 'does not have jurisdiction to try a person so indicted, (and) prosecution of a defendant upon such void indictment will be prevented by a writ of prohibition.' State ex rel. McCormick v. Hall, 150 W.Va. 385, pt. 2 syl., 146 S.E.2d 520.

'All allegations, unnecessary to be proved, may be omitted in any indictment or accusation.' Code, 1931, 62--2--9. Code, 1931, 62--2--10, provides that no indictment shall be quashed or deemed invalid on any one of the numerous grounds therein enumerated including the following: '* * * or for the omission or insertion of any other words of mere form or surplusage.' Code, 1931, 62--2--11, is as follows: 'Judgment in any criminal case, after a verdict, shall not be arrested or reversed upon any exception to the indictment or other accusation, if the offense be charged therein with sufficient certainty for judgment to be given thereon, according to the very right of the case.' Obviously, a conviction on a void indictment is void and a nullity; and, therefore, it follows, from the statutory provision quoted immediately above, that an indictment should not be held to be void, in this collateral proceeding, 'if the offense be charged therein with...

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3 cases
  • State v. Flinn, s. CC888--CC890
    • United States
    • West Virginia Supreme Court
    • July 2, 1974
    ...the words of the statute as well as alleging the specific acts or conduct constituting the offense.' Syllabus, State ex rel. Turner v. McClure, 153 W.Va. 855, 173 S.E.2d 167. Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Cha......
  • State ex rel. Carson v. Wood
    • United States
    • West Virginia Supreme Court
    • July 17, 1970
    ...to proceed, correctly or incorrectly, in the exercise of its jurisdiction have been stated in dissenting opinions in State ex rel. Turner v. McClure, W.Va., 173 S.E.2d 167, and State ex rel. Valley Distributors, Inc. v. Oakley, W.Va., 168 S.E.2d The instant cases are predicated on the propo......
  • State v. Knight
    • United States
    • West Virginia Supreme Court
    • December 18, 1981
    ...so brief and vague that it is not clear which statutory section the defendant is accused of having violated. State ex rel. Turner v. McClure, 153 W.Va. 855, 173 S.E.2d 167 (1970). It is unclear whether the defendant is being charged with committing the crime of indecent exposure or public i......

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