State v. Jackson

• Citation: 145 W.Va. 51,112 S.E.2d 452
• Decision Date: 09 February 1960
• Docket Number: No. CC851,CC851
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Paul Raymond JACKSON.

Page 452

112 S.E.2d 452

145 W.Va. 51

STATE of West Virginia v. Paul Raymond JACKSON.

No. CC851.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1960.

Decided Feb. 9, 1960.

Syllabus by the Court.

1. In a case in which a circuit court overrules a demurrer to a plea in abatement to an indictment under Code, 48-8-1, charging the accused with nonsupport of his illegitimate child, in which the order embodying the circuit court's ruling on such demurrer accords to the State 'leave to file any further pleadings which it may desire responsive to said plea,' the questions arising upon such demurrer may be certified by the circuit court to this Court for its decision under the provisions of Code, 58-5-2.

2. 'The rule that statutes which relate to the same subject should be read and construed together is a rule of statutory construction and does not apply to a statutory provision which is clear and unambiguous.' State of West Virginia v. Epperly, 135 W.Va. 877 , Point 1 Syllabus.

3. 'A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.' State of West Virginia v. Epperly, 135 W.Va. 877 , Point 2 Syllabus.

4. The accused may be tried in the county in which he resides upon an indictment by a grand jury of the circuit court of such county charging him, under the provisions of Code, 48-8-1, with nonsupport of an illegitimate child of which he is alleged by the indictment to be the father, even though the child and its mother are not residents of such county or of the State of West Virginia.

W. W. Barron, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., Donald C. Hott, Pros. Atty., Joseph A. Blundon, Keyser, for plaintiff.

Vernon E. Rankin, Keyser, for defendant.

CALHOUN, Judge.

On April 21, 1959, the defendant, Paul Raymond Jackson, was indicted by a grand jury in the Circuit Court of Mineral County on a charge of nonsupport 'of Paul Raymond Riggleman, his illegitimate child under the age of sixteen years, to-wit, of the age of 19 months * * *.' To this indictment the defendant lodged and filed a plea in abatement, alleging that on the date of the indictment the child and its mother, Pauline Riggleman, were residents of Allegheny County in the State of Maryland; that such residence by both mother and child continued until the date of the filing of the plea in abatement; that the child was never at any time theretofore a resident of Mineral County; and the plea in abatement asserts that because of the factual situation therein alleged relative to the residence of the mother and child, the Circuit Court of Mineral County lacks jurisdiction to hear and try the charge contained in the indictment.

A demurrer to the plea in abatement was lodged and filed on behalf of the State. By an order entered on May 28, 1959, the circuit court overruled the demurrer to the plea in abatement, to which action of the court the State, by counsel, objected and excepted, but the order gave to the State 'leave to file any further pleadings which it may desire responsive to said Special Plea.' Thereupon, the court, on its own motion, certified to this Court its rulings on the demurrer to the plea in abatement under the provisions of Code, 58-5-2. Specifically, the circuit court certified to this Court the following question:

'May a prosecution by indictment under Code 48-8-1 et seq., for nonsupport of an illigitimate child under the age of three (3) years, whose paternity has not been admitted or judicially determined, be brought in the county in which the defendant resides and is found, if the mother of such child is not a resident of West Virginia?'

On October 12, 1959, this Court granted the State's motion to docket the certified case. Thereafter no brief was filed herein by counsel for the defendant, and they did not participate in the oral argument of the case. Counsel for the defendant did, however, file a written motion to dismiss on the ground that the case was improvidently docketed by this Court.

In support of their motion to dismiss, counsel for the defendant assert that the ruling of the circuit court on the demurrer to the plea in abatement constituted a final judgment in the sense of being reviewable in this Court by writ of error under the provisions of Code, 58-5-30, and that, therefore, the judgment and rulings of the trial court could not be certified under the provisions of Code, 58-5-2.

Code, 58-5-30, upon which counsel rely for the proposition that the case should have been brought before this Court by application for a writ of error, provides, in part as follows: 'Notwithstanding anything hereinbefore contained in this article, whenever in any criminal case an indictment is held bad or insufficient by the judgment or order of the circuit court, the State, on the application of the attorney general or the prosecuting attorney, may obtain a writ of error to secure a review of such judgment or order by the supreme court of appeals.'

The use of the language, 'Notwithstanding anything heretofore contained in this article,' might reasonably be construed as making the procedure by writ of error under this statute merely cumulative of the procedure by certification under Code, 58-5-2, in certain situations, because of the fact that both statutes are placed in the same article in the Code. In any event, however, Code, 58-5-30, provides for proceeding by writ of error only in a situation where 'in any criminal case an indictment is held bad or insufficient by the judgment or order of a circuit court'. (Italics supplied.) In the present case, the indictment has not been adjudged by the circuit court to be 'bad or insufficient'. The ruling of the trial court was based on a state of facts alleged by the plea in abatement, but not appearing on the face of the indictment. The sufficiency of the indictment itself has not been challenged in these proceedings, and, therefore, the procedure for appellate review by writ of error provided by Code, 58-5-30, is not available in this instance.

Code, 58-5-2, provides for certification by a circuit court to this Court of 'Any question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, in any case within the appellate jurisdiction of the supreme court of appeals.' While the statute applies to both criminal and civil cases in proper situations, it is clear that the statute contemplates a preliminary or interlocutory ruling or order of the circuit court as distinguished from a final judgment thereof. For instance if the circuit court in a criminal case makes 'an adjudication which disposes of a pleading upon proof' offered in support of or in opposition to the allegations of such pleading, the judgment of the trial court is final in the sense that it may not be certified. State v. Holesapple, 116 W.Va. 19, syl., 178 S.E. 280. See also Jones v. Main Island Creek Coal Co., 82 W.Va. 506, 96 S.E. 797. In a civil case, if a circuit court sustains a demurrer to a bill or declaration, the questions arising upon such demurrer may be certified to this Court, but not so if the circuit court, in addition to sustaining the demurrer, also dismisses the bill or declaration. Heater v. Lloyd, 85 W.Va. 570, 102 S.E. 228; Pittsburgh & West Va. Gas Co. v. Shreve, 90 W.Va. 277, 110 S.E. 714; Lee v. City of Elkins, 97 W.Va. 183, 124 S.E. 499; Gaymont Fuel Co. v. Price, 138 W.Va. 930, 79 S.E.2d 96.

In the case of State v. O'Brien, 102 W.Va. 83, 134 S.E. 464, the court sustained both a demurrer to and a motion to quash a warrant. Though it does not appear from the opinion whether or not the warrant was dismissed and the prisoner discharged, the Court held that the judgment of the circuit court in this respect was final in the sense that it was not reviewable in this Court by certification. To sustain such proposition, the Court cited Pittsburgh & W. Va. Gas Co. v. Shreve, supra, and other decisions in civil cases. In State v. Keller, 118 W.Va. 296, 191 S.E. 201, the circuit court sustained a demurrer to the warrant and the ruling thereon was certified to this Court and decided. In the case of State v. Younger, 130 W.Va. 236, 43 S.E.2d 52, in which the circuit court sustained a demurrer to the warrant, the Court, reaffirming the rule of State v. O'Brien, supra, held that the rulings of the trial court were final in the sense that they could be reviewed by writ of error only.

It may be that these prior decisions result in a degree of confusion, particularly to the extent that they designate one rule in civil cases and a different rule in criminal cases. It may be that the result of the rule of State v. O'Brien, supra, is that the action of a circuit court in sustaining a demurrer to a warrant can not be reviewed in any manner by this Court, inasmuch as Code, 58-5-30, provides for writ of error to this Court only in a situation in which 'in any criminal case an indictment is held bad or insufficient.' (Italics supplied.) However...