State v. Z. L. Harris.
| Decision Date | 01 March 1921 |
| Docket Number | No. 4161.,4161. |
| Citation | 88 W.Va. 97 |
| Parties | State v. Z. L. Harris. |
| Court | West Virginia Supreme Court |
1. Husband and Wife Indictment and Information Criminal Non-support Statute Not Unconstitutional. Properly construed, what is popularly known as the non-support statute, ch. 51, Acts, 1917, secs. 16c (1) to 16c (8), ch. 144, Barnes' Code, 1918, making it a criminal offense for a husband to desert, or wilfully neglect or refuse to provide for the support and maintenance of, his wife in destitute or necessitous circumstances, does not contravene sec. 4, of Art. Ill of the Constitution of this state, nor the Fifth Amendment of the Constitution of the United States, and is not void by reason of anything in said constitutional provisions contained. (p. 99).
2. Same Criminal Non-support Statute Held Not to Vest Juris diction to Try Offense on Complaint Therein Authorized.
But said statute does not vest jurisdiction in any court to try, convict or sentence any person accused of such offense, on the complaint therein prescribed and authorized. (p. 99).
3. Same Complaint Held Sufficient to Support Award of Support Pendente Lite.
Such complaint is sufficient process for an award of support to the wife, pendente lite, on a petition filed therefor and notice thereof to the accused. (p. 100).
4 Same Motion to Quash Complaint Under Non-support Statute Held Properly Overruled.
A motion to quash a complaint filed under said statute and in the form prescribed by it, on the ground of conflict between the statute and the constitutional provisions above mentioned, is properly overruled. (p. 101).
5. Same Defensive Pleas to Complaint Under Non-support Statute Held Premature.
As such complaint is not a charge of the offense therein named, for the purposes of trial respecting it, but only for the purposes of such temporary support and preliminary examination and commitment or bail to answer an indictment for the offense, defensive pleas thereto are premature. (p. 101).
6. Same Order for Payments to Wife Under Non-support Statute Without Petition and Notice Held Erroneous.
An order requiring the husband to make monthly payments to the wife, entered in such a proceeding without a petition therefor and without notice of an application therefor, after trial and conviction on such a complaint, and incorporated in the judgment rendered, is not an order providing for support pendente lite, authorized by sec. 3 of said act, and, even though it might be within the jurisdiction of the court, and, if properly made, might stand as such an order, on reversal of the judgment and finding in other respects, it is at least erroneous, and will be reversed and set aside, along with the judgment and the finding of guilt of the offense. (p. 101).
7. Same On Reversal of Conviction Under Non-support Statute Case May be Remanded.
Upon such reversal, it is proper to remand the case for such procedure on the complaint and warrant, within the scope and limits of the statute, as may be available to the complainant. (p. 102).
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 and remanded.
Musgrave & Blessing and J. E. Beller, for plaintiff in error.
E. T. England, Attorney General, B. Dennis Steed, Assistant Attorney General, Somerville & Somerville and B. H. Blagg, for the State.
The judgment complained of on this writ of error was rendered in a proceeding by a wife against her husband, on the ground of non-support, under the provisions of sees. 16c (1) to 16c (8) of ch. 144 of Barnes' Code of 1918, and, in addition to a requirement that the defendant pay the com- plainant $15.00 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 $800.00 and 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 sec. 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.
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 jurisdiction to do. It tried and convicted the accused on the complaint and without a presentment or indictment. If...
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