#### State of West Virginia *v.*Paul Raymond Jackson

(CC 851)

Submitted January 13, 1960.

Decided February 9, 1960.

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      *W. W.*Barron, Attorney General, *Giles D. H. Sny*der, Assistant Attorney General, *Donald G. Hott,*Prosecuting Attorney, *Joseph A. Blundon,*for plaintiff.

*Vernon E.*Rankin, 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, *53certified to tbis Court its rulings on tbe demurrer to tbe plea in abatement under tbe provisions of Code, 58-5-2. Specifically, tbe circuit court certified to tbis Court tbe following question:

> “May a prosecution by indictment under Code 48-8-1 et seq., for non-support 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 tbe State’s motion to docket tbe certified case. Thereafter no brief was filed herein by counsel for'the defendant, and they did not participate in tbe oral argument of tbe case. Counsel for tbe defendant did, however, file a written motion to dismiss on tbe ground that tbe case was improvidently docketed by tbis Court.

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

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

Tbe use of tbe language, “Notwithstanding anything heretofore contained in tbis article,” might reasonably be construed as making tbe procedure by writ *54of error under this statute merely cumulative of tbe procedure by certification under Code, 58-5-2, in certain situations, because of tbe fact tbat botb statutes are placed in tbe same article in tbe 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 tbe judgment or order of a circuit court”. (Italics supplied). In tbe present case, tbe indictment has not been adjudged by tbe circuit court to be “bad or insufficient”. Tbe ruling of tbe trial court was based on a state of facts alleged by tbe plea in abatement, but not appearing on tbe face of tbe indictment. Tbe sufficiency of tbe indictment itself has not been challenged in these proceedings, and, therefore, tbe 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 tbe sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, in any case within tbe appellate jurisdiction of tbe supreme court of appeals.” While tbe statute applies to botb criminal and civil cases in proper situations, it is clear tbat tbe statute contemplates a preliminary or interlocutory ruling or order of tbe circuit court as distinguished from a final judgment thereof. For instance if tbe circuit court in a criminal case makes “an adjudication which disposes of a pleading upon proof” offered in support of or in opposition to tbe allegations of such pleading, tbe judgment of the trial court is final in the sense tbat 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, tbe questions arising upon such demurrer may be certified to this Court, but not so if tbe circuit court, in addition to sustaining tbe demurrer, also dismisses the bill or declaration. *Heater v. Lloyd,*85 W. Va. 570, 102 S. E. 228; *Pittsburgh &*
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      *W. 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 tbe case of *State v. O’Brien,*102 W. Va. 83, 134 S. E. 464, tbe court sustained both a demurrer to and a motion to quash a warrant. Tbougb it does not appear from tbe opinion wbetber or not tbe warrant was dismissed and tbe prisoner discharged, tbe Court beld that tbe judgment of tbe circuit court in tbis respect was final in tbe sense that it was not reviewable in tbis Court by certification. To sustain sucb proposition, tbe 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, tbe circuit court sustained a demurrer to tbe warrant and tbe ruling thereon was certified to tbis Court and decided. In tbe case of *State v. Younger,*130 W. Va. 236, 43 S. E. 2d 52, in which tbe circuit court sustained a demurrer to tbe warrant, tbe Court, reaffirming tbe rule of *State v. O’Brien, supra,*beld that tbe rulings of tbe trial court were final in tbe 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 tbe extent that they designate one rule in civil cases and a different rule in criminal cases. It may be that tbe result of tbe rule of *State v. O’Brien, supra,*is that tbe action of a circuit court in sustaining a demurrer to a warrant can not be reviewed in any manner by tbis Court, inasmuch as Code, 58-5-30, provides for writ of error to tbis Court only in a situation in which “in any criminal case *an indictment*is beld bad or insufficient. ’ ’ (Italics supplied.) However that may be, tbe cases of *State v. O’Brien, supra,*and *State v. Younger, supra,*are not precedents for tbe situation herein presented. In tbis case not only has tbe indictment not been beld bad or insufficient, but its sufficiency has not been in any manner challenged. Tbe indictment still stands unassailed and tbe State was expressly given tbe right *56to plead further to the plea in abatement. Conceivably, the State may traverse the allegations of the plea in • abatement, or plead in confession and avoidance thereof. The State may take issue on a factual basis with the allegations of the plea pertaining to the residence of the mother and child. The trial court could not and did not preclude this right of the State to plead further.

For the reasons stated, the Court holds that the certified case was not improvidently docketed herein, and that the Court in this proceeding may properly decide the 'question certified.

Code, 48-8-1, the statute upon which the indictment is founded, provides that a parent may be prosecuted thereunder for the nonsupport of “his or her legitimate or *illegitimate*child or children under the age of sixteen years* * *.” (Italics supplied.) A portion of Code, 48-8-6, is as follows:

> *“An offense under this article shall be held to have been committed in any county in which such*husband, *parent,*wife, *child or children may be*at the time of such desertion, refusal, neglect or failure to provide, or any part thereof, took place, *or where the offender may be at the time such complaint is made** *

Pursuant to the statutory provision quoted immediately above, it was held in the first point of the syllabus of the case of *State v. Kessinger,*144 W. Va. 209, 107 S. E. 2d 367, that a chárge of nonsupport may be tried “in any county in which the accused or the wife, child or children may be at the time such offense or any part thereof took place, *or where the offender may beat the time such complaint is made.”*(Italics supplied.)

Code, 48-7-1, relating to bastardy proceedings, on the other hand, provides that thé mother of the child may go before a justice of the peace '*‘ of the county in which she resides*and accuse any person of being the father of a bastard child of which she has been delivered.” (Italics supplied). It was on the basis of *57this statute that the trial court overruled the demurrer to the plea in abatement.

Notwithstanding the statutes pertaining to bastardy proceedings embodied in Chapter 48, Article 7 of the Code, this Court has held that “a cumulative remedy” in relation to illegitimate children is provided in the nonsupport statutes presently appearing in Chapter 48, Article 8 of the Code. *State v. Bennett,*90 W. Va. 477, syl. 1, 111 S. E. 146. See also *State v. Reed,*107 W. Va. 563, 149 S. E. 669; *State v. Scarbrough,*108 W. Va. 9, 150 S. E. 219.

In the case of *State v. Hoult,*113 W. Va. 587, 169 S. E. 241, it was held that a prosecution for nonsupport of an illegitimate child must be in accordance with the requirement of Code, 48-7-1, that bastardy proceedings' must be instituted before the child attains the age of three years. Accordingly, the Court held: “The limitation fixed in the bastardy statute must be deemed applicable to non-support as well.”

In *State of W. Va. v. Richmond,*124 W. Va. 777, 22 S. E. 537, this Court held in point 1 of the syllabus:

> “Under the nonsupport statute (Code, 48-8-1) and the bastardy statute (Code, 48-7-1), read in *pari materia,*a warrant charging a defendant with nonsupport of his alleged illegitimate child under the age of sixteen years and in destitute and necessitous circumstances’, is insufficient and fatally defective unless it contains a further allegation that the child is under the age of three years or that the paternity of the child is admitted by the defendant, or had been admitted before the child attained the age of three years, or had been judicially determined in a bastardy or nonsupport proceeding instituted within three years after the child’s birth.” See also *Holmes v. Clegg,*131 W. Va. 449, 453, 48 S. E. 2d 438.

Code, 48-7-1, dealing with bastardy proceedings, provides that the complaint in such a proceeding shall be made by the *mother.*Accordingly, in the case of *Billingsley v. Clelland,*41 W. Va. 234, 23 S. E. 812, it is stated in the second point of the syllabus: “Under the *58statutory provisions of this State, a bastardy proceeding can only be instituted by the mother of the child * * *.”

In the case of *State v. Epperly,*135 W. Va. 877, 65 S. E. 2d 488, the warrant charged the defendant with nonsupport of an illegitimate child. The trial court quashed the warrant on the sole ground that it disclosed that the complaint was signed by the grandmother of the child rather than by its mother, but this Court held:

> “* * *The defendant asserts in effect that under the cases just cited, the quoted provisions of Section 1, Article 7, Chapter 48, Code, 1931, which as pointed out in *Billingsley v. Clelland,*41 W. Va. 234, 23 S. E. 812, permit only the mother of the child to institute a bastardy proceeding, when read together with the provisions of Section 2, Article 8, of the same Chapter, restrict the scope of that section, with respect to the institution of proceedings under it, to such proceedings only as may be instituted upon complaint under oath or affirmation by the mother of the child or children mentioned in the statute. This contention is wholly untenable and completely ignores and overlooks the express language of Section 2 of Article 8 that Troceedings under this article may be instituted upon complaint made under oath or affirmation by the wife, child or children, or by any other person who may be cognizant of the facts, before any justice of the peace of the county in which such wife, child or children may be, * * *’ ”

With reference to the provision in Code, 48-8-2, that nonsupport proceedings “may be instituted upon complaint made under oath or affirmation by the wife, child or children, or by any other person who may be cognizant of the facts”, the Court stated in the first point of the syllabus of *State v. Epperly, supra:*“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.”

Code, 48-8-6, dealing with nonsupport proceedings, provides in clear and unambiguous language: *“An*
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      *offense under this article shall he held to have been committed in any county in which such*husband, *parent,*wife, *child or children*may be at the time such desertion, refusal, neglect or failure to provide, or any part thereof, took place, *or where the offender may he at the time such complaint is made** ***Such language, being clear and unambiguous and plainly expressing the legislative intent, “will not be interpreted by the courts but will be given full force and effect.” *State v. Epperly,*pt. 2 syl., *supra.*

For the reasons stated herein, the question certified is answered in the affirmative, the judgment of the Circuit Court of Mineral County is reversed, and this proceeding is remanded to that court for trial of the offense charged in the indictment.

*Ruling reversed.*