State v. Constable
| Decision Date | 14 March 1922 |
| Docket Number | 4300. |
| Citation | 112 S.E. 410,90 W.Va. 515 |
| Parties | STATE v. CONSTABLE. |
| Court | West Virginia Supreme Court |
Submitted March 7, 1922.
Syllabus by the Court.
The indictment in this case for alleged nonsupport by defendant of his minor child, founded on section 16c(1), c. 144 Barnes' Code 1918 (Code Supp. 1918, § 5179a), which alleges the offense in the form of the complaint and warrant prescribed by section 16c(2) of said chapter (section 5179b) is not bad on demurrer or motion to quash because it omits to aver that the derelictions of the defendant were unlawfully done and were without lawful excuse, the words "without just cause" employed in the indictment and in the form for the warrant being the equivalent of the words "without lawful excuse" contained in said section 16c(1).
Generally it is sufficient in an indictment to describe the offense in the language of the statute, or in the form of indictment or warrant, when they are prescribed.
Although proof of the desertion of wife or children in destitute or necessitous circumstances, or neglect or refusal to provide for their maintenance or support, by section 16c(6) of the statute (Code Supp. 1918, § 5179f) constitutes prima facie evidence that such desertion, neglect or refusal was wilful, the burden remains on the state in each case to show by competent evidence the "destitute or necessitous circumstances" of such dependents, a question of fact for the jury.
In such case it is no defense for the defendant to show that the dependent wife or child has been supported by the voluntary actions of third persons, except perhaps in the case of a proved or presumed adoption of a child, or by the exertions and labors of the wife, or by the charity of kind and generous friends or relatives, or by charitable institutions. The object and spirit of the statute is to compel the parent to perform his parental duty.
When on such an indictment, the court, after verdict of guilty, suspends judgment thereon and undertakes to enter an alternative judgment that defendant pay the wife a stipulated monthly sum for the future support and maintenance of the child, when after the indictment and before judgment she has intermarried with another man, who has taken the infant into his family and is properly maintaining and supporting it there, the judgment in favor of the wife for such support, without evidence showing the destitute and necessitous circumstances of the child, is erroneous and should be reversed. In such case the presumption is that the stepfather has accepted the minor child into his custody and has agreed to provide it proper maintenance and support, a presumption, however, which may be overcome by competent evidence.
Error to Circuit Court, Tucker County.
Jesse Constable was convicted of nonsupport of his child under 16 years of age in destitute and necessitous circumstances, and he brings error. Reversed and remanded.
W. K. Pritt, of Parsons, for plaintiff in error.
E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.
By the verdict of the jury, at the June term, 1919, of the circuit court the defendant was found guilty as charged in the indictment.
The indictment, substantially in the language of the complaint and warrant prescribed by section 16c(2), c. 144, Barnes' Code 1918 (Code Supp. 1918, § 5179b), our non-support statute, alleges that defendant on the ______ day of ______, 1918, and within one year next preceding and until the finding of the indictment "did without just cause, being then and there a parent, willfully neglect and refuse to provide for the support and maintenance of his legitimate child Mary Elizabeth Constable, she being then and there under the age of sixteen years in destitute and necessitous circumstances."
The judgment complained of, pronounced on December 7, 1920, was as follows:
Section 16c(1) of said statute (section 5179a), which defines the offense, imposes the penalty of fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding one year with hard labor, or both fine and imprisonment, and provides that if the fine be not paid, the court may also direct the county court to cause such husband or parent to labor on the roads or other public improvements of the county, for which it shall allow the sum of not less than fifty cents nor more than one dollar per day, which shall be paid to the wife or to the guardian, curator, custodian or trustee of the minor child or children, as the court may order.
Section 16c(4) referred to in the judgment, authorizes the court, after conviction, instead of imposing the penalty imposed by the former section, or in addition thereto, in its discretion, having regard to the circumstances, and to the financial ability or earning capacity of the defendant, to make an order, which shall be subject to change by the court from time to time as circumstances may require, directing the defendant to pay a certain sum periodically to the wife, or to the guardian, curator, or custodian of the infant child or children, or to an organization or individual approved by the court as trustee, and to release the defendant from custody on probation, upon his entering into a recognizance, with or without surety, and in such sum as the court or judge thereof in vacation may order or approve, with conditions as further prescribed therein.
Of the errors assigned and relied on, the first is that defendant's demurrer to and motion to quash the indictment should have been sustained. Two supposed defects in the indictment are pointed out; the first being that it is not alleged that the derelictions of the defendant were unlawfully done; second, that the indictment does not charge in the language of said section 16c(1), that the parental delinquencies with which he is accused were "without lawful excuse." We cannot accede to either of these propositions. The averment of the indictment, which conforms to the form of complaint and warrant prescribed, charges that the defendant's delinquencies were "without just cause." This is the language applied to the non-support of the wife. Relating to the non-support of a child, the language is "without lawful excuse." But the forms of complaint and warrant plainly imply the intent to make the phrase in the one case the equivalent of the other. It would be difficult in the face of the whole statute to discover any material difference in meaning between the two phrases. And the statute by its very terms makes it unlawful to omit the duties imposed on the parent.
To sustain the position of counsel for defendant, 2 Bishop's New Criminal Procedure, § 503, is cited and relied on. This authority says:
"But if a statute, in describing the offence which it creates, uses the word (that is, the word unlawfully), the indictment founded on the act will be bad if it is omitted; and it is generally best to resort to it, especially as it precludes all legal cause or excuse for the crime."
The statute in question here does not use the word unlawfully. The words descriptive of the offense are employed in the indictment, and generally this is sufficient pleading in an indictment for a statutory offense. State v. Riffe, 10 W.Va. 794; State v. Watts, 43 W.Va. 182, 27 S.E. 302; State v. Schnelle, 24 W.Va. 767; State v. Pennington, 41 W.Va. 599, 23 S.E. 918; State v. Bogges, 36 W.Va. 713. We think there is no substantial defect in the indictment.
The argument based on the clerical error in the spelling of the word "legitimate" is self-correcting. Besides, the indictment would not be bad if this word had been wholly omitted; for it is averred that Mary Elizabeth Constable is the defendant's child, and it is immaterial whether she was his legitimate or illegitimate child. The statute imposes upon him the duty of support whether the child be born in or out of wedlock.
The next point of error is that the evidence was insufficient to support the verdict. It is insisted that there was no showing that the child was in destitute or necessitous circumstances, but on the contrary, that ever since the decree of divorce of the father and mother, which gave the care, custody and control of the child to the mother, she had been maintained by the mother and maternal grandmother, and had been well provided for by them, and that the destitute and necessitous circumstances contemplated by the statute had not been made to appear. In Georgia it seems to have been held that, notwithstanding the desertion, if the wants of the child be supplied by others, the...
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