Smith v. State

• Decision Date: 31 March 1928
• Citation: 4 S.W.2d 351,156 Tenn. 599
• Parties: SMITH v. STATE.
• Court: Tennessee Supreme Court

4 S.W.2d 351

156 Tenn. 599

SMITH v. STATE.

Supreme Court of Tennessee.

March 31, 1928

Error to Criminal Court, Davidson County; Frank M. Garard, Judge.

Laurence H. Smith was convicted of willfully and without good cause failing and neglecting to provide for his wife according to his means, and he brings error. Affirmed and remanded.

Levine & Levine and R. A. Goodman, all of Nashville, for plaintiff in error.

John J Hooker, Atty. Gen., for the State.

SWIGGART J.

This is an appeal by the plaintiff in error, Laurence H. Smith, from a judgment rendered by the criminal court of Davidson county upon an indictment charging that the plaintiff in error had willfully and without good cause failed and neglected to provide for his wife, Mary Lucile Smith, according to his means, etc.

The appeal is prosecuted under assignments of error that there is no evidence to sustain the conviction; and the particular contention of the plaintiff in error under said assignments is that the facts proven do not show a case within the jurisdiction of the trial court, nor an offense committed in the state of Tennessee.

There is little controversy in the evidence, and the material facts are as follows: The plaintiff in error and the prosecuting witness were married September 17, 1919, in the state of South Carolina, and lived together in South Carolina and in Georgia until January, 1924, at which time they separated in Atlanta, Ga., where they then resided.

The plaintiff in error is a native of Alabama, and, after his separation from his wife, returned to Alabama, and resumed his residence, presumably, at the home of his father. In May 1927, he obtained employment as an organizer for a national organization, and on May 5, 1927, came to Nashville, under said employment. He made his headquarters in Nashville carrying on his work at that place and in other counties of Central Tennessee, until August 11, 1927, on which date he was arrested under a warrant issued by the juvenile court at Nashville, on complaint of his wife, charging him with the offense of which he has now been convicted. After his arrest, he declined to talk to his wife about the matter, in the presence of the judge of the juvenile court, and on his plea of not guilty, he was bound over to the criminal court, according to the procedure defined in the statute, Acts 1915, chapter 125.

Upon his arrest, August 11, 1927, the plaintiff in error was requested to resign his position, and did so. He then undertook to secure other employment in Nashville, and at the date of the trial, October, 1927, testified that he was awaiting a promise of employment with an oil company in Nashville, supporting his testimony with the testimony of his prospective employer. At the date of his arrest, plaintiff in error was receiving a salary of $150 per month, with his expenses paid by his employer.

Neither the plaintiff in error nor his wife disclosed the cause of their separation. The wife protested her affection for the plaintiff in error and her willingness to resume her life with him. He contented himself with a statement that he would not live with her, and made no effort to justify his failure to contribute to her support since the separation in 1924.

It has been repeatedly held by this court that the statute, Acts 1915, chapter 125, making it a misdemeanor for a husband to willfully and without good cause neglect or fail to provide for his wife according to his means, is a remedial statute, designed to secure a proper support for a dependent wife, rather than to punish the husband for his dereliction. Accordingly, it has been held that the arraignment of the husband before the judge of the juvenile court, with an opportunity there to plead guilty, as provided in sections 2 and 3 of the statute, is jurisdictional, without which the husband is not subject to prosecution in the criminal court. The issuance of the warrant by the juvenile court is therefore the commencement of the prosecution of which the indictment in the criminal court is a subsequent step. The neglect or failure to provide proven as the basis of a conviction must, therefore, be a neglect or failure to provide occurring prior to the commencement of the proceedings in the juvenile court.

It is sufficient that the proceedings in the juvenile court be shown in the evidence offered in support of the subsequent indictment, as was done in the present case.

It appears from the bill of exceptions that the plaintiff in error was twice indicted in the criminal court, and that a verdict of acquittal had been entered on the first indictment, before the present indictment was returned by the grand jury. The first indictment is not made a part of the record in this case, and it is conceded on the brief filed for the plaintiff in error that no question of former jeopardy is made; but it is contended that the plaintiff in error could not be convicted upon evidence of his neglect or failure to provide for his wife occurring prior to the date of the former trial.

This contention amounts, in effect, to a plea of former jeopardy, and cannot be sustained for the reason that the former indictment is not made a part of the record, and we cannot determine whether it was a valid indictment. "To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crime charged in the last bill of indictment, be precisely the same with that charged in the first, and that the first bill of indictment is good in point of law." Hite v. State, 17 Tenn. (9 Yerg.) 357, 375.

Upon the failure of the indictment first returned, it was not necessary that the plaintiff in error be again arraigned before the juvenile court. The second indictment, returned at the same term of the criminal court, related to the original proceedings in the juvenile court.

The evidence shows that the warrant was issued by the juvenile court and...