Ex Parte Strong

• Decision Date: 18 April 1923
• Docket Number: (No. 7515.)
• Citation: 252 S.W. 767
• Parties: Ex parte STRONG.
• Court: Texas Court of Criminal Appeals

252 S.W. 767

Ex parte STRONG.

(No. 7515.)

Court of Criminal Appeals of Texas.

April 18, 1923.

Rehearing Denied June 29, 1923.

Habeas corpus to attack validity of wife and child desertion law, on relation of J. W. Strong. Application for writ and motion for rehearing denied, and relator remanded into custody.

Cofer & Cofer, of Austin, for relator.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

By habeas corpus relator attacks the validity of the wife and child desertion law, which is chapter 9a, Vernon's P. C., on the ground that article 640a of said chapter is so indefinitely framed and of such doubtful construction as to be inoperative.

If this be true, then under article 6, Vernon's P. C., the law cannot be upheld. Article 640a is as follows:

"That any husband who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, or any parent who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than twenty-five dollars and not more than five hundred dollars or by imprisonment in the county jail not more than one year, or by both such fine and imprisonment."

Inasmuch as the charge against relator is desertion of his minor children, he confines his attack on said article to the latter part thereof, making either parent guilty in certain cases. The claim of invalidity rests apparently on the proposition that the expressions "without justification" and "destitute and necessitous circumstances" are too indefinite and uncertain.

By article 9, Vernon's P. C., we are bidden to construe the laws of this state according to the plain import of the language used; and from article 10, Id., we learn that all words used in our Penal Code, except those specially defined, are to be taken and construed in the sense in which such words are understood in common language. There being no special definition of the words objected to in this statute, they must be understood as same are used in common language. The Century Dictionary & Encyclopedia defines "justification" as:

"The showing of a sufficient reason in court why one did what he is called to answer; the act of showing something to be just or right; proof of fairness or right intention."

Closely akin, and of the same derivation, is the word "justifiable"; which appears in so many decisions of this court and so often in chapter 12 of our Penal Code. Mundine v. State, 37 Tex. Cr. R. 5, 38 S. W. 619; Cheek v. State, 4 Tex. App. 444; May v. State, 6 Tex. App. 191; Richardson v. State, 7 Tex. App. 486; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 86. The word "justifiable" appears to be used in the penal laws of most, if not all, of the other states of the Union. Substantially the same definition of justification, as given above, will be found in 24 Cyc. 790.

The word "destitute" is a well-understood word, and investigation of its meaning discloses that in all of the lexicons and dictionaries it means: Without means, indigent, poor, needy. The word "necessitous" means pressed by poverty, needy, unable to procure what is necessary for one's station. We find in the dictionary that "destitute" is given as a synonym of "necessitous."

These expressions in said statute would therefore seem not open to the criticism made by relator. The words are not themselves ambiguous. They have meaning well understood in common language, and we are not led to believe that one charged with the offense of deserting his children without justification would have serious difficulty in understanding what was meant. Nor do we believe that one so charged would have difficulty in understanding that if he could show a condition of inability or reasonable expectation or belief that he was providing or caring for the physical wants of such children, or had so provided for their care and maintenance, that this would be justification for any alleged failure to support and care for such children. Similar reasoning might be indulged in with reference to the other words and expressions used in the statute and objected to by relator. They are words of common meaning and are well understood. One need not be a lawyer or a very wise man to understand the meaning of the words "destitute" and "necessitous." That juries in different localities might come to different conclusions as to what would amount to justification, for when such children were left in destitute and necessitous circumstances, is no more an objection to this law than could be raised to nearly every law upon our statute books. It needs no illustration to make plain the fact that upon one state of case one jury will conclude a man justified in committing a homicide, while another on a similar state of facts will conclude otherwise; that under one state of case he is held not guilty of taking property with fraudulent intent, etc., while under a similar fact case the jury may conclude the opposite.

We have examined the authorities cited by relator, but conclude they do not support his contention. In the recent cases of Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494, Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566, and Ex parte Slaughter, 92 Tex. Cr. R. 212, 243 S. W. 478, we were discussing enactments whose attempts to penalize certain acts appear to us in no way similar to the statute now before us. Taking the Slaughter Case for instance, to what lexicon or dictionary, or to what common understanding of the phrase, could one go to ascertain the meaning of the expression "thickly built up," with reference to the territory contiguous to a highway? There is no definition or standard by which such expression could be ascertained or understood. Not so with the word "justification" or the expression "destitute and necessitous." What we have just said about the Slaughter Case, supra, is substantially true of both the Griffin and Russell Cases, mentioned.

When the meaning of the word or phrase in question, or the import of the group of words forming an expression, is well understood and conveys to the minds of all substantially the same thing, any law containing same should not be held indefinite or of doubtful construction. The statute in question does not appear to fall within that class referred to by Mr. Black in section 36 of his work on Interpretation of Laws, wherein he uses the following language:

"If a statute is devoid of meaning — if the language employed, though clear and precise, directs an impossibility or is incapable of bearing any reasonable signification, or if an ambiguity exists which cannot be cleared up — so that it is not possible to ascertain the object to which the Legislature intended the act to apply or the result which it was expected to accomplish, the act is inoperative. In such a case, the courts cannot revise and amend it, on mere conjecture as to the intention of the Legislature, but it is their duty to pronounce it incapable of effectual operation."

Being unable to agree with learned counsel for relator that the statute under consideration is so indefinite and of such doubtful construction as to render it invalid, the relief prayed for will be denied, and relator will be remanded to the custody of the sheriff of Travis county as under the original warrant.

On Motion for Rehearing.

MOR...