90 W. Va. 477 | W. Va. | 1922
On complaint filed and warrant issued under the provisions of secs. 16c (1) to- 16c (8), inclusive of ch. 144 of Barnes’ Code of 1918, commonly known as the nonsupport statute, the plaintiff in error was arrested, prosecuted and convicted of the paternity of an illegitimate child. On his arraignment in the-Circuit Court of Mercer County, he demurred to the complaint and warrant and moved to quash them, and later, the motion having been overruled, he entered a plea of not guilty on which issue was joined. Thereafter, a continuance having been refused, he demanded a trial by jury, which was denied him. To all of these adverse rulings he excepted.
On the inquiry conducted by the court, he was found and held to be the father of the child, required to pay $4.00 per week to its mother, pending an inquest by the grand jury, at the next term of the court, and compelled to enter into a recognizance in the penalty of $500.00, and with condition to appear on the first .day of such term, to answer such indictment as should be found against him. The basic issue in the inquiry conducted by the court was that of the paternity of the child then about two and a half years old. The accused had never been charged with such paternity in any proceeding under the bastardy statute, eh. 80 of the Code.
Although the statute under which the proceedings here narrated and complained of, authorizes prosecution of any parent who shall, without lawful excuse, desert' or wilfully neglect or refuse to provide for the support and maintenance of his or her legitimate or illegitimate child’ or children, iinder the age of sixteen years, in destitute or necessitous circumstances, it makes no express provision for determination of the question of paternity, in any instance in which the áecused is a man and the child illegitimate and the former
But for the'rule of evidence prescribed in sec. 16c (6) of the act, it would be difficult, if not impossible, consistently with the rules of interpretation and construction, to bring cases of this kind within its provisions. Serious consequences ensue upon the fixing of paternity of an illegitimate child upon a citizen: It affects his liberty, his estate and his earnings. That subject has been governed for many years by a statute, conferring the right of jury trial and carefully safeguarding the rights of the accused as well as those of the prosecutor. Code, ch. 80. In the act now under consideration, there is no express repeal of that statute.
However, in the enactment of eh. 80 of the Code, the Legislature did not exhaust its powers over the subject and its authority to provide additional remedies for the same wrong, making the new ones cumulative, is incontrovertible. Intent to do so in this instance is clearly indicated by the terms and provisions of the act, when read and considered together. The first section includes parents bf children whether legitimate or illegitimate. Section six plainly contemplates trial of the issue of paternity of illegitimate children. It prescribes a rule of evidence to govern in proving that the defendant is the father or mother of “such child or children.” These terms necessarily include both classes of children, legitimate and illegitimate. Though the issue
But it must be interpreted and applied in conformity with legislative intent and purpose. It does not in terms nor by necessary implication authorize dispensation with the procedure ordained by the constitution and statutes, for the government and regulation of trials, findings and judgments, in actions and proceedings instituted in the courts, for imposition of civil and criminal liability. It assumes' that the courts, in administering it, will take notice of the modes of trial of such issues and adopt them. In so far as conviction of a criminal offense is sought, there must be an indictment and trial by jury, if the latter is not waived,
The statute contemplates a preliminary hearing on the warrant, if not waived, indictment and trial by jury. The prosecution is one for a criminal offense, with incidental power in the court, to give civil relief in certain forms, both before trial and after conviction. Primarily, the proceeding is a criminal one. The civil liability is collateral and incidental in character. After conviction, punishment may be avoided by performance of the omitted duty, but that does not alter the nature of the proceeding. Before conviction and pending the proceedings by indictment and trial, the court may make such order “as may seem just,” for support. This, too, is collateral and incidental. The plea of not guilty entered to the indictment, when found, puts in issue the act made criminal by" the statute, wilful desertion and failure or refusal to support the dependent party. That issue, of course, includes the narrower, though basic one, of relation, which may or may not be raised in the evidence on the • trial. Ordinarily it is not, except in cases of alleged paternity of illegitimate children, but it is involved and may become actual in all of the other classes of cases. If that is the vital issue in any case, as it is here, the accused is entitled to have it determined by a jury, whether it is involved in the civil side of the case or the criminal side. Intention on the part of the Legislation to make any citizen, male or female, civilly liable for perhaps hundreds of dollars in the form of support pendente lite, otherwise than by the verdict of a jury, when the relation is properly denied, can no more be assumed nor indulged, than intention to impose criminal liability without such trial.
Postponement of all pecuniary relief, until after indict-m'ent, trial, conviction and final judgment, would often work great hardship. There may be necessary continuances, mistrials and appellate proceedings, carrying the controversy over a long period of time, and, in that way, the plainly manifest purpose of the Legislature, to compel the rendition of support, may be almost entirely defeated. While in a legal sense, the main proceeding is criminal, its practical purpose is to coerce husbands and parents into the rendition of necessary support of wives and children, both before and after conviction of the accused. Sec. 3 of the act gives the prosecutor the right to come into court for pendente lite support, and empowers the court to award it. Its inability to try the issue of relationship, if made on the petition, without a jury, does not necessarily preclude such relief. The section of the act providing the remedy is silent as to the mode of trial. Not a word in it can be construed as necessarily inhibiting power in the court to impanel a jury for trial of such an issue and let it render a verdict, in such collateral proceeding, upon which the award or denial of the relief sought shall depend. And. the prescription of a rule of evidence, by section 6, limited to the issue of relationship, is strongly suggestive of legislative contemplation of two issues, one governed by the rules
In this proceeding all of the steps prescribed by the statute for determination of the right to temporary support were omitted. No petition was filed. The defendant had no notice of an application for award of such support. He was not accorded the right of trial by jury, of the issue as to paternity, of the child. The trial he had on the complaint and warrant was not such a one as the statute contemplates, except in so far as it may answer the purposes of a preliminary examination. His demurrer to the warrant and complaint and motion to quash them were properly overruled. Both papers follow the forms prescribed by the statute. As the entire proceeding, in so far as it relates to the award of temporary support, was irregular and erroneous, it is unnecessary to enter upon any inquiry as to the propriety of the rulings on the motion for a continuance and the demand for a trial by jury.
The judgment complained of will be reversed, except in so far as it required the defendant to enter into a recognizance to answer such indictment as should be, found against him, and the case remanded.
Reversed and remanded.