90 W. Va. 515 | W. Va. | 1922
By tbe verdict of the jury, at the June term, 1919, of the circuit Court, the defendant was found guilty as charged in the indictment.
The indictment, substantially in the language of the complaint and warrant prescribed by section 16c (2), chapter 144 Barnes’ Code 1918, our non-support statute, alleges that defendant on the-day of-, 1918, and within one year next preceding and until the finding of the indictment “did without just cause, being then and there a parent, wilfully neglect and refuse to provide for the support and mainten-enee of his legilrmale child Mary Elizabeth Constable, she being then and there under the age of sixteen years in destitute and necessitous circumstances.”
The judgement complained of, pronounced on December 7, 1920, was as follows: “And the court without at this time imposing the penalty provided for in section 16c, chapter 144 of Barnes ’ Code of 1918; but reserving the right to do so hereafter, doth approve and confirm the verdict finding the defendant guilty and doth determine and require in pursuance of Sec. 16c (4) of said chapter that the said defendant shall pay to the. mother of the infant daughter of the said defendant, Mary Elizabeth Constable, Mrs. Nettie Gladys White, formerly Mrs. Nettie Gladys Constable, the sum of $6.00 per month, said monthly payment beginning with the 20th day of December, 1920, and to be paid on the 20th day of each month thereafter until the further orders of the Court; also that the State recover of and from the said defendant the costs of this prosecution. And the said defendant shall enter into bond in the penalty of $500.00, with approved security, conditioned that he will pay the monthly payments aforesaid as they shall severally fall due and that the said Jesse Constable shall make his personal appearance in the circuit court of Tucker County, of West Virginia, whenever ordered so to do.’’
Section 16c (1) of said statute, which defines the offense, imposes the penalty of fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding one
Section 16c (4) referred to in the judgment, authorizes the court, after conviction, instead of imposing the penalty imposed by the former section, or in addition thereto, in its discretion, having regard to the circumstances, and to the financial ability or earning capacity of the defendant, to make an order, which shall be subject to change by the court from time to time as circumstances may require, directing the defendant to pay a certain sum periodically to the wife, or to the guardian, curator, or custodian of the infant child or children, or to an organization or individual approved by the court as trustee, and to release the defendant from custody on probation, upon his entering into a recognizance, with or without surety, and in such sum as the court or judge thereof in vacation may order or approve, with conditions as further prescribed therein.
Of the errors assigned and relied on, the first is that defendant’s demurrer to and motion to quash the indictment should have been sustained. Two supposed defects in the indictment are pointed out; the first being that it is not alleged that the derelictions of the defendant were unlawfully done; second, that the indictment does not charge in the language of said section 16c (1), that the parental delinquencies with which he is accused were “without lawful excuse.” We can not accede to either of these propositions. The averment of the indictment, which conforms to the form of complaint and warrant prescibed, charges that the defendant’s delinquencies were “without just cause.” This is the language applied to the non-support of the wife. Relating to the non-support of a child, the language is “without lawful excuse.” But the forms of complaint and warrant plainly imply the intent to make the phrase in the one case the equivalent of the
To sustain the position of counsel for defendant 2 Bishop’s New Criminal Procedure, see. 503, is cited and relied on. This authority says: “But if a statute, in describing the offence which it creates, uses the word, (that is, the word unlawfully), the indictment founded on the act will be bad if it is omitted; and it is generally best to resort to it, especially as it precludes all legal cause or excuse for the crime.” The statute in question here does not use the word unlawfully. The words descriptive of the offense are employed in the indictment, and generally this is sufficient pleading in an indictment for a statutory offense. State v. Riffe, 10 W. Va. 794; State v. Watts, 43 W. Va. 182; State v. Schnelle, 24 W. Va. 767; State v. Pennington, 41 W. Va. 599; State v. Boggess, 36 W. Va. 713. We think there is no substantial defeet in the indictment.
The argument based on the clerical error in the spelling of' the word “legitimate” is self-correcting. Besides the indictment would not be bad if this word had been wholly omitted; for it is averred that Mary Eizabeth Constable is the defendant’s child, and it is immaterial whether she was his legitimate or illegitimate child. The statute imposes upon him the duty of support whether the child be born in or out of wedlock.
The next point of error is that the evidence was insufficient to support the verdict. It is insisted that there was no showing that the child was in destitute or necessitous circumstances, but on the contrary, that ever since the decree of divorce of the father and mother, which gave the care, custody and control of the child to the mother, she had been maintained by the mother and maternal grandmother, and had been well provided for by them, and that the destitute and necessitous circumstances contemplated by the statute' had not been made to appear. In Georgia it seems to have been held that, notwithstanding the desertion, if the wants of the child be supplied by others, the statutory crime of abandonment is.
What then in law constitutes such destitute or necessitous circumstances ? The wife swears in this case that the defendant neglected and refused to provide for -the support and maintenance of the child during the period named in the indictment, and that she owned no property in her own right; but that during the time subsequent to her divorce and the time defendant neglected, and refused to support the child, it was in her care and custody by the decree of the court, and was taken care of and supported by her and her mother. But the evidence of the wife and the grandmother is, that since the marriage of the wife to her present husband, prior to the judgment complained of, the child had been and was then being properly supported and main-tamed by the mother and stepfather.
Some states hold that it is no defense that the wife or child is supported by the voluntary actions of others. Hunter v. State, 10 Okla. Crim. App. 119, Ann. Cas. 1916A. 612; State v. Bess, 44 Utah 39. And in Ohio it is held that the same rule obtains when the child is supported by the divorced wife. State v. Stouffer, 65 Ohio St. 47. But contra, Mays v. State, 123 Ga. 507; State v. Thornton, 232 Mo. 298. In other states it is held that the father is not amenable to the non-support law, where a child has been awarded the mother under a divorce decree and the decree did not require the father to contribute to the support of the child. State v. Coolidge, 72 Wash. 42; People v. Hartman, 23 Cal. App. 72. But he may be found guilty if the decree giving the mother the custody requires the father to continue to contribute to the support of the child. People v. Sohlott, 162 Cal. 347. In the cases of State v. Bess, supra, and State v. Waller, 90 Kans. 829, 49 L. R. A. (N. S.) 588, it was held not to be a defense to the husband that his wife or child is supported and kept from want by her exertions, or by the charity of kind and generous friends or relatives, or by charitable institutions, su.eh not being the intent or • spirit of the law. The object of the law'is to compel the parent to perform his or her parental duty to the child. It is so
But the case is not before us on the sufficiency of the evidence to support the verdict of guilty as charged in the indictment, which of course can cover only the period between the date of the indictment and one year prior thereto. No final judgment of fine or imprisonment has as yet-been pronounced on the verdict. The right to do so was reserved by the court. The only question before tis is the correctness or incorrectness of the alternative judgment, that the defendant, for the future, to begin on December 20, 1920, and on the 20th day of each subsequent month until the further order of the court, pay to the mother of the child for its support and maintenance the sum of six dollars per month. It is contended that the "destitute and necessitous circumstances” required as the basis for such judgment cloes not appear. On the contrary it was made to appear by the evidence that since the finding of the indictment the mother had intermarried with one White, and that the child had been taken into the new family thus established, and was at the time of the judgment being properly maintained and supported by the mother and stepfather. Thereby a new relationship was established, and the maintenance and support of the child under this relationship does not stand upon the same footing as when the support is the result of the labors or of the property of the mother or of strangers. In the case of Hall v. Green, 87 Me. 122, the action was by the stepfather against the father of the child for its support and maintenance from 1884 to 1893. No express agreement was shown. In that case, as in this, the decree divorcing the mother from the father gave her the custody and control of the child, without alimony or support for the child. It was there held that by obtaining custody and control of the child, the wife as-
Recurring to the new relationship established by the remarriage of the mother, it is held by many decisions that, while the stepfather, is under no legal duty to support the stepchild, yet if he assumes a parental relation to the child and takes on himself that duty, no obligation on the part of the child to reimburse him is implied. 39 Am. & Eng. Ann. Cas., note page 1180. In 20 R. C. L., page 594, section 10, the doctrine is thus stated: “Though there is sound authority to the contrary, it is practically the universal rule that a stepfather, as such, is not under obligation to support the children of his wife by a former husband, but that, if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support, them, and acquires a correlative right to their services.” This rule by the same authority is applied to grandparents who stand in loco parentis. 20 R. C. L., supra, section 11.
As we have already said, the evidence in this case, somewhat short of what it might have been, is that the child had been taken into the new family and was being supported by the mother and stepfather, and as the mother swears she had no property, presumably it is being supported by the stepfather. No facts or circumstances are shown indicating that the stepfather is supporting the child upon any condition or express or implied promise of reimbursement, or as an act of charity on his part. To justify the judgment in favor of the wife for the monthly instal-ments decreed, we think that some facts and circumstances justifying the conclusion that the child 'was at the date of the judgment in destitute and necessitous circumstances within the meaning of the law, should have been shown;
Reversed and remanded.