McCullers v. State, 7 Div. 45.

• Decision Date: 05 February 1935
• Docket Number: 7 Div. 45.
• Citation: 159 So. 273,26 Ala.App. 314
• Parties: McCULLERS v. STATE.
• Court: Alabama Court of Appeals

159 So. 273

26 Ala.App. 314

McCULLERS v. STATE.

7 Div. 45.

Court of Appeals of Alabama

February 5, 1935

Appeal from Circuit Court, Clay County; E. P. Gay, Judge.

Lester McCullers was convicted of vagrancy, and he appeals.

Affirmed.

A. A. Carmichael, Atty. Gen., for the State.

BRICKEN Presiding Judge.

This prosecution originated in the county court, upon affidavit and warrant, wherein appellant was charged with the offense of being a vagrant. The trial in the county court resulted in his conviction, whereupon he took an appeal to the circuit court, and was there tried upon a complaint filed by the solicitor, as the statute requires. The complaint contained two counts, as did the original affidavit. We gather from the record that the trial proceeded in the circuit court as for a violation of section 5571, subd. 8, of the Code 1923. The subdivision (8) supra, reads as follows: "Any able-bodied person who shall abandon his wife and children or either of them, without just cause, leaving her or them without sufficient means of subsistence, or in danger of becoming a public charge."

The punishment for vagrancy, in any of its phases, is prescribed by section 5572 of the Code of Alabama, 1923. It is there provided that any person convicted of the offense must be fined not more than $500, and may also be sentenced to hard labor for the county for not more than 12 months.

The trial in the circuit court resulted in the conviction of defendant, and the jury assessed a fine against him of $250. Failing to pay said fine, or to confess judgment therefor with good and sufficient sureties, as the statute provides (section 5288), the court duly sentenced him to hard labor for the county as provided by section 5290 of the Code, 1923. From the judgment of conviction, this appeal was taken.

The evidence disclosed without dispute or conflict that this appellant married Nettie McCullers on October 23, 1933, and that they lived together about one month when he left her. The evidence also without dispute shows that this woman gave birth to a child about four weeks after the marriage aforesaid. The child was begotten out of wedlock and the testimony of the woman was to the effect that this appellant was its father, also that he was the only man with whom she ever had sexual intercourse. The defendant denied paternity of the child, also that he had sexual intercourse with the woman at or about the time the child was begotten. He did admit that he had intercourse with her about a year before the child was begotten.

It would appear that the defendant relied upon the provision of the statute, "without just cause," to justify him in his admitted abandonment of the wife and child. It was also admitted by him that at no time after he left her did he contribute in any manner to the support of his wife and her child. Certainly, if the defendant was...