State v. Cruikshank, 10525

• Decision Date: 14 July 1953
• Docket Number: No. 10525,10525
• Citation: 76 S.E.2d 744,138 W.Va. 332
• Court: West Virginia Supreme Court
• Parties: STATE, v. CRUIKSHANK et al.

Page 744

76 S.E.2d 744

138 W.Va. 332

STATE, v. CRUIKSHANK et al.

No. 10525.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1953.

Decided May 26, 1953.

Dissenting Opinion July 14, 1953.

Syllabus by the Court.

'A writ of error to an order of a trial court, to which no objection or exception has been taken, will be discharged as having been improvidently awarded.' Point 1, Syllabus, Baker v. Gaskins, 124 W.Va. 69.

J. W. Maxwell, Beckley, W. Va., for plaintiffs in error.

John G. Fox, Atty. Gen., T. D. Kauffelt, Asst. Atty. Gen., for defendant in error.

HAYMOND, President.

On December 10, 1951, the defendant Guy Clarence Cruikshank was tried and convicted by a Justice of the Peace of Clay County of the offense of wilfully neglecting and refusing, without lawful excuse, to provide for support or maintenance of his two legitimate children, under the age of sixteen years, in destitute and necessitous circumstances, under Section 1, Article 8, Chapter 48, Code, 1931, upon a warrant issued by the justice on the sworn complaint of Ruby Olive Cruckshank, the wife of the defendant, as provided by Section 2 of the same article and chapter. The judgment of the justice was that the defendant pay sixty dollars per month for the support of his two children in installments of thirty dollars each on two specified dates and thereafter on the fifteenth day and the thirtieth day of each succeeding month.

Under Section 4, Article 8, Chapter 48, Code, 1931, as amended, the defendant appealed from the foregoing judgment of the justice to the Circuit Court of Clay County and gave bond in the penalty of one thousand dollars, the amount fixed by the justice, with Stella Cruikshank and Paul Cruikshank as his sureties. That section of the statute provides that a defendant who is convicted of an offense mentioned in Section 1 and who desires to appeal from such conviction shall give bond in the penalty of not less than five hundred dollars, conditioned that he appear before the court to which he appeals, and that if upon trial of the appeal he is again convicted of the charge, the payments shall be fixed by the judge of the court to which the appeal is taken in an amount to be determined by him. The section also provides that the amount, as fixed by the judge, shall relate to the date of the trial before the justice; that such bond shall be liable for the payments of the sums so fixed; that judgment may be entered upon such bond against the defendant and his surety; and that the court may enter such further judgment as may be proper under the statute.

The bond executed by the defendant and his sureties was conditioned that he personally appear before the Circuit Court of Clay County on the first day of its next regular term to answer the State of West Virginia for the offense of which he had been convicted and that he should not depart without leave of the court, but contained no express condition that he satisfy any judgment rendered by the court upon the appeal.

On appeal to the circuit court, the defendant, on June 9, 1952, was again tried upon the warrant and in the trial in that court, at which the defendant was present in person and represented by two attorneys, a verdict of guilty as charged in the warrant was returned by a jury. Following the return of the verdict, the court asked the defendant if 'he had anything to say why a judgment should not be rendered against him on said verdict'. The defendant did not give any reason in opposition to the entry of a judgment upon the verdict, did not interpose any objection or take any exception to the action of the court, and did not make any motion to set aside the verdict or to grant him a new trial. The court then proceeded to render judgment upon the verdict of the jury. The judgment, as set forth in the final order of June 9, 1952, is that 'the said Guy Clarence Cruikshank and Stella Cruikshank and Paul Cruikshank, the last two of whom signed the appeal bond given by the defendant in this case as his surety therein, do pay to the said Ruby Olive Cruikshank, the mother of the two children, Karen Lee Cruikshank and Phyllis Irene Cruikshank, for the support and maintenance of said children and until the further order of this Court, the sum of $20.00 per month for each of said children, said payments to begin as of the tenth day of December, 1951, the aggregate of said payments due to this date amounting to $240.00, and the next and subsequent payments of $40.00 each ($20.00 per month for each of said children) to be made on or before the tenth day of July, 1952, and monthly thereafter until the further order of this Court, or until said children severally reach the age of sixteen years; and that the said defendant and his said sureties do further pay to the said Ruby Olive Cruikshank her costs in and about the prosecution of this action before the Justice and in this Court expended, including the usual statute fee of $10.00.' The order of June 9, 1952, also contains this provision: 'On motion of plaintiff an execution is awarded her for the collection of said $240.00 and the costs aforesaid, if the said $240.00 and costs are not paid on or before July 1, 1952.' To the foregoing judgment of the circuit court this Court awarded this writ of error upon the joint petition of the defendant and Stella Cruikshank and Paul Cruikshank, the sureties on the appeal bond given by the defendant before the justice of the peace.

By their assignments of error the defendant and his sureties seek reversal of the judgment of the circuit court on substantially these grounds:

(1) That Section 2, Article 8, Chapter 48, Code, 1931, authorizing a justice of the peace to try a husband or a parent for the offense created and made a misdemeanor by Section 1 of the same article and chapter of the Code, is unconstitutional because violative of Article III, Section 10, and Article III, Section 14, of the Constitution of West Virginia; (2) that Section 4, Article 8, Chapter 48, Code, 1931, as amended, limits the right of a defendant to appeal from the judgment of a justice of the peace to the extent of denying such appeal unless the defendant gives bond with surety in a penalty of at least five hundred dollars, with condition that he appear before the court to which he appeals and satisfy the judgment of the appellate court if convicted upon such appeal, and for that reason is unconstitutional as violative of Article III, Section 10, and Article III, Section 14, of the Constitution of West Virginia; (3) that the appeal bond, given under Section 4, Article 8, Chapter 48, Code, 1931, as amended, is void except as a bond to require the personal appearance of the defendant and can not constitute the basis of a judgment for the payment of money, and any such judgment rendered upon such bond is void; (4) that the bond given by the defendant and signed by the sureties contains no express condition to pay the judgment rendered by the circuit court upon the appeal and for that reason that court was without jurisdiction to render any judgment against the sureties on the bond; and (5) that, even if the bond is valid, the liability of the sureties is limited to the aggregate of two hundred and forty dollars, the amount fixed by the circuit court for the period between the date of the trial before the justice and the date of the trial in that court on appeal; that in any event the liability of the sureties can not exceed in amount the sum of one thousand dollars, the penalty of the bond; and that the judgment of the circuit court, to the extent that it is in excess of either of the foregoing sums of two hundred and forty dollars and one thousand dollars, is unauthorized and void.

The questions sought to be raised by the assignments of error were not presented to or passed upon by the circuit court and the defendant and his sureties undertake to present them in the first instance to this Court upon this writ of error. The plaintiff, the State of West Virginia, insists that, as the defendant did not raise in the trial court the points now relied on for reversal of the judgment, he and his sureties may not raise them for the first time in this Court under the well recognized general rule that errors not assigned in the trial court will not be considered on appeal or writ of error.

The failure of the defendant, clearly shown by the record, to interpose any objection, to take nay exception, and to make a motion to set aside the verdict and award a new trial, presents a preliminary question which must be determined before the questions sought to be raised by the assignments of error which challenge the validity of the judgment rendered by the circuit court may be considered or resolved.

'The general rule, subject to certain limitations and exceptions * * *, is that an appellate court will consider only such questions as were raised and reserved in the lower court. This rule is based upon considerations of practical necessity in the orderly administration of the law and of fairness to the court and the opposite party, and upon the principles underlying the doctrines of waiver and estoppel. Obviously, the ends of justice are served by the avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might have been obviated or corrected in the trial court if the question had been raised. There would be no assurance of any end to the litigation if new objections could be raised on appeals.' 3 Am.Jur., Appeal and Error, Section 246. With respect to the necessity for objections and exceptions concerning errors committed by the trial court in the trial of a case by a jury the text in 1 Michie's Jurisprudence, Appeal and Error, Section 103, contains these statements: 'The general rule is that objections not shown to have been made in the trial court cannot be considered in the appellate court. The proceedings of the lower court are presumed to be...