Burton v. Commonwealth

• Decision Date: 14 January 1909
• Citation: 109 Va. 800,63 S.E. 464
• Parties: BURTON . v. COMMONWEALTH.
• Court: Virginia Supreme Court

63 S.E. 464

109 Va. 800

BURTON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1909.

1. Criminal Law (§ 889^*)—Verdict—Amendment— Practice.

It is the safer practice to send the jury to their room when it becomes necessary to amend their verdict as to any matter of substance.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 889.*]

2. Criminal Law (§ 889*) — Trial — Amendment of Verdict.

In a trial under an indictment charging accused with having without cause deserted his lawful wife, she being then and there destitute, etc., the verdict found accused guilty of willful desertion without just cause. Thereupon the clerk, by direction of the court, wrote the verdict so as to find accused guilty as charged in the indictment. The jury being polled, each juror responded that the verdict as amended was his verdict. Held, that accused was not prejudiced.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 889.*]

3. Husband and Wife (§ 312*)—Abandonment—Indictment.

Under statute approved March 12. 1004 (Acts 1904, p. 208, c. Ill [Code 1904, § 37 95c]), I making it a misdemeanor for any person to de-sert or willfully neglect to provide for the support of his wife or minor children in destitute or necessitous circumstances, the breach of the duty of the husband to support his wife and children may be stated as having occurred either at the moment of the desertion or at any time during the continuance of the willful neglect to provide for them.

[Ed. Note.—For other cases, see Husband and Wife, Dec Dig. § 312.^*]

4. Husband and Wife (§ 314*)—Abandonment— Instructions.

In a trial under St. March 12. 1904 (Acts 1904, p. 208, c. Ill [Code 1904, § 3795c]), making it a misdemeanor for one to desert or willfully neglect to provide for the support of his wife, etc., an instruction that a quarrel or series of quarrels, for which the wife was responsible, constituted a just cause for desertion, etc., was properly refused

[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 314.*]

5. Husband and Wife (§ 314*)—Abandonment—Instructions.

In a trial under St. March 12, 1904 (Acts 1904, p. 208, c. Ill [Code 1904, § 3795c]),-making it a misdemeanor for one to desert or willfully neglect to provide for the support of his wife or minor children in destitute or necessitous circumstances, an instruction that if, when accused separated from his wife, she had certain money given her by accused in the bank, and that she now has part of the money and jewels and real estate worth a certain sum, she was not in destitute circumstances, was properly refused; there being no fixed standard as to what constitutes destitute or necessitous circumstances.

[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 314.*]

6. Husband and Wife (§ 313*)—Abandonment—Sufficiency of Evidence.

In a trial under St. March 12, 1904 (Acts 1904, p. 208, c. Ill [Code 1904, § 3795e]), making it a misdemeanor for one to desert his wife in destitute and necessitous circumstances, evidence held insufficient to show that accused's wife was any time in destitute or necessitous circumstances within the meaning of the statute.

[Ed. Note.—For other cases, see Husband and Wife, Dec. Dig. § 313.*]

Error to Corporation Court of Richmond.

Walter S. Burton was convicted of an offense, and brings error. Reversed and remanded.

L. O. Wendenburg, for plaintiff in error.

The Attorney General, for the Commonwealth.

KEITH, P. Burton was indicted by a grand jury of the hustings court of the city of Richmond under a statute approved March 12, 1904 (Acts 1904, p. 208, c. Ill [Code 1904, § 3795c]), which declares: "That any person who shall, without just cause, desert or willfully neglect to provide for the support of his wife or minor children in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor, and shall be punished by imprisonment in jail not exceeding one year: Provided, that before the trial (with the consent of the defendant), or after conviction, instead of Imposing the punishment hereinbefore provided, or in addition thereto, the court in its discretion, having regard to the circumstances and financial ability of the defendant, shall have the power to enter an order, which shall be subject to change by it from time to time, as the circumstances may require, directing the defendant to pay a certain sum weekly or monthly for the space of one year to the wife or to the custodian of the minor, and to release the defendant from custody on probation for the space of one year upon his entering into a recognizance, with or without sureties, in such sum as the court shall direct. The condition of the recognizance shall be such that if the defendant shall make his personal appearance at court whenever ordered to do so within the year, and shall further comply with the terms of the order or of any subsequent modification thereof, then the recognizance shall be void, otherwise to remain in full force and effect."

Burton was found guilty, and the court, overruling a motion to set aside the verdict, entered judgment, in accordance with the statute, that Walter S. Burton do "pay to his wife, Florence Dickerson Burton, the sum of $35 per month for the period of 12 months from June 26, 1907, the date of rendering of said verdict of guilty, and that the accused, is released from custody on probation upon his entering into a recognizance in the sum of $1,000, with surety, to be approved by the court, conditioned according to law. But, in the event the accused fails to give said recognizance or pay said money, then it is ordered in accordance with the verdict of the jury that he be remanded to the custody of the sergeant of the city of Richmond, Va., and be confined in the city jail for the period of one year or until the further order of this court."

"To which action of the court in fixing the amount at $35 per month the accused excepted on the ground that the same is excessive, and to the action of the court making the same payable from June 26, 1907, instead of from this date, the accused excepted."

To this order a writ of error was awarded by this court upon the petition of the defendant.

The first error assigned is that the jury were permitted to amend their verdict, which in the first instance read as follows: "We, the jury, find the prisoner guilty of willful desertion without just cause, and ascertain his punishment at twelve months in the city jail." Thereupon the court directed the clerk to put the verdict of the jury in proper form, and the clerk rewrote it: "We, the jury, find the prisoner guilty as charged in the indictment, and ascertain the term of his confinement in the city jail at twelve months."

The indictment charges the defendant in the language of the statute with having, without cause, deserted his lawful wife; she being then and there destitute and in necessitous circumstances. The verdict as render-ed by the jury, therefore, may be...