State v. Clay

• Decision Date: 15 July 1977
• Docket Number: No. 13659,13659
• Citation: 160 W.Va. 651,236 S.E.2d 230
• Parties: STATE of West Virginia v. Herman CLAY.
• Court: West Virginia Supreme Court

Page 230

236 S.E.2d 230

160 W.Va. 651

STATE of West Virginia v. Herman CLAY.

No. 13659.

Supreme Court of Appeals of West Virginia.

July 15, 1977.

Syllabus by the Court

1. In an indictment charging a defendant with nonsupport of an illegitimate child, the paternity of the child, if contested, is an essential element of the crime charged and must be proved beyond a reasonable doubt.

2. To the extent that State v. Kessinger, 144 W.Va. 209, 107 S.E.2d 367 (1959) and State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952) are inconsistent with the holding of this case, such cases are overruled.

3. "In a criminal prosecution the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment." Point 1, Syllabus, State v. Murphy, 93 W.Va. 477 (117 S.E. 147) (1923).

4. Any application of W.Va.Code, 1931, 48-8-5, which permits proof of an essential element of a crime by any standard other than beyond a reasonable doubt is constitutionally impermissible.

James M. Cagle, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant in error.

CAPLAN, Chief Justice:

Herman Harrison Clay, the appellant, was indicted by the grand jury serving the Circuit Court of Logan County on the charge of failing "to provide the support and maintenance of Debra Keyser, she, the said Debra Keyser, being the illegitimate daughter of the said Herman Harrison Clay, and being under the age of eighteen years, to-wit: eleven months old, and then and there in destitute and necessitous circumstances."

In the trial that followed, the jury found him guilty as charged in the indictment. An order was entered on the verdict wherein the court directed the defendant to pay for the child's support. The defendant's motion to set aside the verdict having been overruled, he prosecutes this appeal.

Although the appellant assigns several grounds of error, the principal ground upon which he relies is the giving of an instruction wherein the court told the jury that paternity need only be proved by a preponderance of the evidence but that "(a)ll of the other elements of the offense as charged in the indictment must be proved beyond a reasonable doubt."

It is contended by the defendant that paternity, being an issue in this case for jury determination, is an element of the crime charged nonsupport of an alleged illegitimate child and therefore must be proved beyond a reasonable doubt. A lesser requirement, says the defendant, would constitute a denial of due process of law.

Asserting that the instruction alluded to above is proper, the State relies on W.Va.Code, 1931, 48-8-5, which reads, in part:

No other or greater evidence shall be required to prove . . . that the defendant is the father . . . of such child or children, than is or shall be required to prove such facts in a civil action . . .

The State also cites and relies on State v. Kessinger, 144 W.Va. 209, 107 S.E.2d 367 (1959) and State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952) which held that to sustain a conviction for nonsupport of an illegitimate child, the evidence must establish guilt beyond a reasonable doubt of every essential element of the crime, except that the question of paternity of the child may be established by a preponderance of the evidence. In Kessinger, supra, paternity was admitted so the proof thereof was not required by the jury. In Fitzsimmons, supra, the Court, in requiring only a preponderance of the evidence to prove paternity relied entirely on W.Va.Code, 1931, 48-8-5.

Heretofore, no attack has been made on the constitutionality of that code provision as constituting a denial of due process when applied to a charge of nonsupport of an illegitimate child. It is conceded that the charge of nonsupport of a child, legitimate or illegitimate, is criminal in nature. Thus, every element thereof must be proved beyond a reasonable doubt. "The rule requiring that evidence in a criminal case must establish guilt beyond any reasonable doubt is so well established and known that we need not discuss it or cite authorities." State v. Fitzsimmons, supra. Decisive of the issue raised by this assignment of error is whether paternity is an element of the crime charged in this indictment. The defendant is charged with being the father of an illegitimate child and with nonsupport of such child. He has not admitted paternity. In fact, the record is replete with evidence that this child's mother had sexual relations with several other men during the period of time in which the child was allegedly conceived. It is therefore incumbent upon the jury, in order to convict, to find guilt, not only of nonsupport, but also of paternity. Certainly, if he is not the father he has no legal obligation of support.

We find that paternity of the child in the instant indictment is an element of the crime charged therein and that it must be proved beyond a reasonable doubt. "In a criminal prosecution the burden is on the state to prove beyond a reasonable doubt every essential allegation of the indictment." Syllabus No. 1, State v. Murphy, 93 W.Va. 477, 117 S.E. 147 (1923). See 5B M.J., Criminal Procedure, § 54 and the many cases cited therein. The trial court therefore committed reversible error in instructing the jury that...