Grantland v. State

Decision Date20 May 1913
Citation8 Ala.App. 319,62 So. 470
PartiesGRANTLAND v. STATE.
CourtAlabama Court of Appeals

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Edgar Grantland was convicted of abandoning his wife, and he appeals. Reversed and remanded.

In addition to the charges set out in the opinion, the following charges were refused to defendant: "(4) If you are not satisfied beyond a reasonable doubt that the wife of defendant under all the circumstances of the case would probably become a burden to the public for the reason of any contingency likely to happen within a reasonable time, and in the ordinary course of events, then defendant should be acquitted."

"(A) If Ada Grantland, defendant's wife, had sufficient means of subsistence, even though the means were furnished by the father, then you should find the defendant not guilty."

"(1) There is no evidence in this case that defendant was an able-bodied man."

Tidwell & Sample, of New Decatur, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was indicted and convicted of a violation of subdivision 8 of section 7843 of the Code--the vagrancy statute--for that, "being an able bodied person, he abandoned his wife, without just cause, leaving her without sufficient means of subsistence, or in danger of becoming a public charge."

At common law, while it was a violation of the marriage contract and of a resultant duty imposed by law, yet it was not a criminal offense to leave a wife without the means of support. Ex parte Jackson, 45 Ark. 158. But statutes similar to ours on the subject now exist in England and in many jurisdictions of the United States making the neglect or refusal of the husband to support the wife a criminal offense under certain circumstances.

In the construction of these statutes it has been held to be a sufficient defense that there has been a divorce from bed and board (People v. Cullen, 153 N.Y. 635, 47 N.E. 894 44 L.R.A. 420; but see in connection State v Gunzler, 52 Mo. 172; Com. v. Simmons, 165 Mass. 356, 43 N.E. 110; Hall v. State, 100 Ala. 86, 14 So. 867), or that the wife has been guilty of adultery ( Carney v. State, 84 Ala. 7, 4 So. 285), or that the marriage was procured by duress or fraud (Carnley v. State, 162 Ala. 95, 50 So. 362), or that there has been a separation by mutual consent (State v. Weber, 48 Mo.App. 500; Commonwealth v. Richards, 131 Pa. 209, 18 A. 1007, but see in connection People v. Meyer, 12 Misc.Rep. 613, 33 N.Y.Supp. 1123), or that the wife has treated the husband with such cruelty as would justify a divorce (Com. v. Porter, 4 Pa.Dist.R.

503), or that he is unable to maintain her (State v. Linck, 68 Mo.App. 161), or that he has in good faith proffered support which has been rejected by the wife ( People v. Pettit, 74 N.Y. 320). And since the law makes the husband the head of the family, imposes upon him the obligation of supporting and protecting the wife, and as a result confers upon him the right of fixing the matrimonial residence, enjoining upon her the duty of honoring and obeying him, we are of opinion that under the statute he has sufficient legal cause for leaving her and denying her support, where she refuses his request made in good faith and declines to follow him to the domicile he provides, when he has made the selection in the bona fide exercise of his power and for honest reasons, and not through mere whim or caprice, or a desire to punish the wife, or to take her to a place where he does not intend to reside with her himself, or where her health or comfort would be endangered. In such case her refusal to follow him renders her and not him guilty of abandonment, unless she is unable to follow him or has some other lawful excuse. 9 Am. & Eng.Ency.Law, p. 767.

Upon this theory, defendant requested written charge numbered 2, as follows: "I charge you that under the law the husband has the right to choose the domicile of the wife, and if you find that the defendant in good faith chose Mr. Hood's as the place for him and his wife to reside, and his wife refused to live with him at that place, you should find him not guilty." Pretermitting the consideration of others, one vice of the charge lies in the fact that it ignores the controverted question as to whether or not the defendant invited or requested the wife to join him at this domicile. She testified on being recalled that she never refused to go to Mr. Hood's; that defendant had never asked her to go there. To excuse him her refusal must be predicated upon an invitation or request from him, express or necessarily implied from his conduct, and a bona fide one at that. Hardenbergh v. Hardenbergh, 14 Cal. 654.

Besides, the court could not be put in error for refusing this charge, even though it had correctly stated the law, since it was fully covered by other written charges given at defendant's request.

Charge 3, to the effect that, "unless you find from the evidence that the defendant was an able-bodied person, you should find him not guilty," should have been given. This follows from the plain letter of subdivision 8 of section 7843 of the Code, under which the indictment was preferred. Evidently there was a lapse of the legislative mind in the drafting of this subdivision; since it fails to make it an offense for a husband, who is not an able-bodied man, to abandon his wife or leave her in danger of becoming a public charge, although he may have sufficient property with which to support her. The statute is different in verbiage from the one considered in Boulo v State, 49 Ala. 22. It is probable that the Legislature intended to prohibit the evil mentioned; but, clearly failing so to do, the courts are without authority to supply by construction such a deficiency in the enactment. The statute is a penal one, in derogation of common law, and must be strictly construed. Judge v. Kerr, 17 Ala. 328. In order to give the subdivision the construction contended for by...

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9 cases
  • Palmer v. State, 5 Div. 262
    • United States
    • Alabama Court of Criminal Appeals
    • 18 Marzo 1975
    ...State, 32 Ala.App. 606, 28 So.2d 805, stated: 'It is basic that criminal and penal statutes are to be strictly construed. Grantland v. State, 8 Ala.App. 319, 62 So. 470; Jacobs v. State, 17 Ala.App. 396, 82 So. 837; Knowles v. State, 19 Ala.App. 476, 98 So. 207. However, even penal laws are......
  • Ex parte Bertram
    • United States
    • Alabama Supreme Court
    • 7 Marzo 2003
    ...such case.'" (Emphasis added; citations omitted.) See also Holmes v. Lambreth, 163 Ala. 460, 50 So. 140 (1909); and Grantland v. State, 8 Ala.App. 319, 62 So. 470 (1913). It appears ludicrous to me that a defendant would believe that the enhancements referred to in § 32-5A-191 are directed ......
  • Watson v. State, 8 Div. 379
    • United States
    • Alabama Court of Criminal Appeals
    • 28 Octubre 1980
    ...the other hand, such statutes are not to be extended by construction." See Holmes v. Lambreth, 163 Ala. 460, 50 So. 140; Grantland v. State, 8 Ala.App. 319, 62 So. 470. Webster's Third New International Dictionary, p. 499 (1966) defines "convict" as, "To find or declare guilty of an offense......
  • Bentley v. State, 4 Div. 240
    • United States
    • Alabama Court of Appeals
    • 9 Febrero 1954
    ...provided by him in good faith, and her refusal to do so, without lawful excuse, renders her guilty of abandonment. Grantland v. State, 8 Ala.App. 319, 62 So. 470; State v. Caylor, 21 Ala.App. 627, 111 So. Surely the fulfillment of the duty imposed upon the defendant by law to accompany her ......
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