State v. Harris

• Citation: 106 S.E. 254
• Decision Date: 01 March 1921
• Docket Number: (No. 4161.)
• Parties: STATE. v. HARRIS.
• Court: Supreme Court of West Virginia

106 S.E. 254

STATE.
v.
HARRIS.

(No. 4161.)

Supreme Court of Appeals of West Virginia.

March 1, 1921.

(Syllabus by the Court.)[106 S.E. 255]

Error to Circuit Court, Mason County.

Proceedings by the State against Z. L. Harris for nonsupport of complainant wife. Judgment requiring defendant to pay complainant a monthly sum and committing him to the county jail in default of a recognizance for personal appearance and for compliance with the order for support, and he brings error. Reversed except in so far as it overruled the motion to quash the complaint, and remanded for further proceedings.

Musgrave & Blessing and J. E. Beller, all of Point Pleasant, for plaintiff in error.

E. T. England, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and Somerville & Somerville and B. H. Blagg, all of Point Pleasant, for the State.

POFFENBARGER, J. The judgment complained of on this writ of error was rendered in a proceeding by a wife against her husband, on the ground of nonsupport, under the provisions of sections 16c(l) to 16c(8) of chapter 144 of Barnes' Code of 1918 (Code Supp. 1918, c. 144, §§ 16e[l]-16e[8], sees. 5179a-5179h), and, in addition to a requirement that the defendant pay the complainant $15 per month, for her support, until the further order of the court, it committed him to the custody of the sheriff and imposed upon him a sentence of imprisonment in the county jail with hard labor on the public roads, for a period of one year, unless he should enter into a recognizance in the penalty of $800 with good and sufficient sureties, to make his personal appearance in court, when ordered so to do, and to comply with the terms of the order respecting support and any subsequent modification thereof.

An argument founded upon section 4 of art. 3 of the Constitution of this state and the Fifth Amendment to the Constitution of the United States, and submitted in support of one of the assignments of error, assails the validity of the statute on which the proceeding is based. Properly construed and applied, it does not conflict with any constitutional provision. It was carefully examined and analyzed with reference to the constitutional inhibition of prosecution for major offenses, otherwise than upon presentment or indictment, and its validity affirmed, in Fisher v. Sommerville, 83 W. Va. 160, 98 S. E. 67.

It was held in that case, however, that the complaint by which the proceeding is initiated performs a double function. For enforcement of the duty to render support, it suffices as process. Its sufficiency in that sense for the purposes of prosecution for the offense created by the statute was not necessarily intended. The Legislature could have intended to make it operate only for purposes of arrest and preliminary examination and commitment, in respect of the criminal offense; and we held that it had so intended, and therefore had not attempted to vest power and jurisdiction in any court, to entertain a prosecution for the offense, otherwise than upon presentment or indictment.

In its procedure on the complaint and warrant, the trial court has gone beyond what we so held could have been and was intended by the Legislature and done what that body did not necessarily intend to vest...