State v. Wiseman
| Decision Date | 22 May 1956 |
| Docket Number | No. 10772,10772 |
| Citation | 92 S.E.2d 910,141 W.Va. 726 |
| Parties | STATE of West Virginia v. Leonard WISEMAN. Case |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
In a criminal prosecution, in which the defendant is charged with nonsupport of his wife and a child or children, legitimate or illegitimate, it is error for the trial court to give, over defendant's objection, an instruction dealing with the support of defendant's children, which does not contain the words contained in the statute, Code, 48-8-1, as amended, 'without lawful excuse, desert or wilfully neglect or refuse' to provide for the support and maintenance of defendant's child or children.
Horace S. Meldahl, Charleston, for plaintiff error.
John G. Fox, Atty. Gen., Harold A. Bangert, Jr., Asst. Atty. Gen., for defendant in error.
At the January, 1953, term of the Circuit Court of Boone County, Leonard Wiseman was indicted for the nonsupport of his wife and two children, under the provisions of Code, 48-8-1, as amended. There was a trial by jury, during which an effort was made to reconcile the husband and wife, resulting in the withdrawal of a juror and a mistrial, which were acquiesced in by counsel for the defendant. Another trial having been had on April 29, 1955, the jury rendered a verdict of guilty, and the defendant, in lieu of any other penalty, was required to pay to his wife, Lenora Wiseman, for the support of herself and children the sum of $100 a month, the first payment to be made on May 15, 1955, and payments of $100 a month on the 15th day of each and every month thereafter until the youngest child reaches the age of sixteen years, and then such payments shall be made and continued for the support of defendant's wife, Lenora Wiseman.
At the second trial the defendant moved to quash the indictment on the grounds that: (a) The defendant could not properly be tried on April 29, 1955, upon an indictment returned January 26, 1953, where the separation had occurred in July, 1951, and more than three terms of court had passed without trial; (b) the defendant was denied a speedy trial, as required by Section 17, Article III of the Constitution of West Virginia; (c) that it was error to withdraw a juror and declare a mistrial at the first trial, and not dismiss the indictment; and (d) after the jury had been sworn at the first trial, it was error to withdraw a juror in an effort to bring about a reconciliation, and constituted double jeopardy subsequently to try the defendant upon the same indictment. The trial court denied the foregoing motion, and the defendant entered a plea of not guilty.
At the second trial, at which defendant was convicted, the trial court gave a number of instructions on behalf of the State, among which was State's instruction No. 1, to the giving of which defendant's counsel objected and stated reasons for his objection.
The indictment charges that the defendant, Leonard Wiseman, within one year next prior to the date of the finding of the indictment by the County of Boone 'did without just cause, unlawfully desert and wilfully neglect and refuse to provide for the support and maintenance of his wife, Lenora Wiseman, in destitute and necessitous circumstances, against the peace and dignity of the State.' And in the second count it was charged that the defendant, Leonard Wiseman, 'within one year next prior to the date of finding of this indictment, in said County of Boone, did, without lawful excuse, unlawfully desert and wilfully neglect to provide for the support and maintenance of his legitimate children, Gary Wiseman, and Jimmy Wiseman, under the age of sixteen years, to-wit: of the age of five (5) years and fifteen (15) months, respectively, in destitute and necessitous circumstances, against the peace and dignity of the State.'
The grounds in support of the motion to quash the indictment are without merit.
Code, 62-3-21, setting forth the requirement that a person charged with a felony must be tried within three terms of court of the time when the indictment against him was returned, has no application to misdemeanor cases, and even if the statute does apply to misdemeanors, the defendant has waived his right to be tried within three terms of court by consenting to a delay in bringing about his trial. Ex parte, Hollandsworth (Hollandsworth v. Godby), 93 W.Va. 543, 117 S.E. 369; State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61; 14 Am.Jur., 858, Criminal Law, Sections 134 and 135; Vance v....
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