State ex rel. Mioton v. Baker

• Decision Date: 09 May 1904
• Docket Number: 15,207
• Citation: 36 So. 703,112 La. 801
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. MIOTON v. BAKER, Judge

36 So. 703

112 La. 801

STATE ex rel. MIOTON v. BAKER, Judge

No. 15,207

Supreme Court of Louisiana

May 9, 1904

Application by the state, on the relation of E. J. Mioton for writs of certiorari and prohibition to Joshua G. Baker judge section A, criminal district court. Application dismissed.

Hamilton Numa Gautier, Barnard Bee Howard, and Adams & Otero, for relator.

Walter Guion, Atty. Gen., and Chandler Clement Luzenburg, Dist Atty. (Philip H. Mentz and Robert Hardin Marr, of counsel), for respondent.

OPINION

LAND, J.

This proceeding is a sequel to the dismissal of the relator's appeal by this court in the case of State of Louisiana v. Eugene J. Mioton (No. 15,164) 36 So. 314, ^[1] wherein defendant was prosecuted for violating Act No. 34, p. 42, of 1902, entitled "An act making it a misdemeanor to desert or willfully neglect to provide for the support and maintenance by any person of his wife or minor children in destitute or necessitous circumstances and to provide a penalty therefor."

We held in that case that the order issued by the court, after conviction, that defendant pay a certain sum weekly to his wife, was not a sentence under the statute, but a suspension thereof, and therefore the appeal was premature.

In the case of the State v. Cucullu, 110 La. 1087, 35 So. 300, the court held that a party accused of violating Act No. 34, p. 42, of 1902, was without interest to attack the proviso empowering the judge, in his discretion, to order the payment by defendant of a certain sum weekly to his wife, sentence in the meantime to be suspended, because such provisions are entirely in the interest of the parties accused, and subject to their acceptance.

The suspension of sentence in such cases is a matter of grace dependent on the discretion of the court, and the accused is left free to accept or reject the proposition to pay alimony.

If the accused declines to pay, he is not punished for disobedience of the order of court, but is sentenced for his antecedent violation of the provisions of the statute. The proviso authorizes a compromise in the interest of the wife and children.

This view of the nature of the proviso disposes of the contentions of the relator, which assumes that it provides for an additional punishment. We held in the Cucullu Case that the accused had no interest to contest the constitutionality of the proviso.

The complaint that the act violates article 31 of the Constitution of 1898, and is therefore null and void, as embracing two distinct objects, is without force. The proviso is germane and incidental to the object expressed in the title, and is not a separate and distinct object. Dehon v. Lafourche Basin Levee Board, 110 La. 767, 34 So. 770; State ex rel. Wynee v. Lee, 106 La. 400, 31 So. 14.

The last objection set up in the demurrer is that the statute does not define "just cause," which will excuse the desertion and neglect denounced by its provisions, and therefore leaves the sufficiency of the cause to the discretion and judgment of each judge.

"Desertion," when applied to the relation of husband and wife, has a well-defined legal meaning, and signifies "the act by which a man...