St. John v. State

• Decision Date: 07 June 1927
• Docket Number: 6 Div. 193
• Citation: 113 So. 321,22 Ala.App. 115
• Parties: ST. JOHN v. STATE.
• Court: Alabama Court of Appeals

113 So. 321

22 Ala.App. 115

ST. JOHN v. STATE.

6 Div. 193

Court of Appeals of Alabama

June 7, 1927

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

W.L St. John was convicted of desertion or willful neglect to provide for support and maintenance of his wife, and he appeals. Reversed and rendered.

Charlton & Charlton, of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The prosecution against this appellant originated in the domestic relations court of Jefferson county. In that court he was adjudged guilty, and, from the judgment of conviction, he appealed to the circuit court. Upon the trial in the circuit court, the solicitor filed a complaint, charging that:

"W.L. St. John, a husband, did, within 12 months before the beginning of this prosecution, without just cause desert, or willfully neglect or refuse or fail to provide for the support and maintenance of his wife; she, his said wife being then and there in destitute or necessitous circumstances," etc.

This complaint was drawn under the provisions of section 4480 of the Code 1923, which makes it unlawful for any husband who shall, without just cause, desert, or willfully neglect or refuse or fail to provide for the support and maintenance of his wife; she being then and there in destitute or necessitous circumstances.

In order to secure a conviction under this statute (the marital relation being admitted), the state must offer proof, under the required rules, that is to say, sufficient to show beyond a reasonable doubt and to a moral certainty (1) that the husband did, without just cause, desert his wife, or, without just cause, did willfully neglect or refuse or fail to provide for her support and maintenance; (2) that said wife was then and there in destitute or necessitous circumstances.

It is needless to state that the rules of evidence and the measure of proof in a case of this character do not differ from that of other criminal cases. The gravamen of the offense is the destitute or necessitous condition of the wife; therefore, unless there is evidence sufficient to establish this material fact, which is, as stated, an essential and controlling ingredient of the offense, no conviction for this offense can be had or sustained.

The terms "destitute" and "necessitous" are to be taken in their common everyday acceptation, usage, and meaning. In Webster's New International Dictionary (1923 Ed.) the word "destitute" is defined to be "not possessing the necessaries of life; in a condition of extreme want; without possessions or resources," and "necessitous" is defined "needy, indigent, pressed with poverty." As applied to particular cases, however, we do not see how there could be a fixed standard, and, so far as we know, or can ascertain, the law has fixed none. It may vary with the conditions to which the parties have been accustomed. Common or ordinary observation teaches that the necessities of one person may be luxurious to another accustomed or habituated to different surroundings. We think, therefore, a reasonable construction of this statute and its proper application is to leave it to the jury to ascertain whether or not the facts establish the averment that the alleged injured party was in fact in destitute or necessitous circumstances, subject of course, to review under the usual rules.

The word "willful" in this statute, as here applied, should be interpreted as contradistinguished to heedlessness or indifference; in other words, the word "willful" is the synonym of "intentional," or "designed," pursuant to intention or design, without just (lawful) cause.

In the case at bar, numerous points of decision are involved and presented. We need not discuss them all, but only such as are necessary to a proper construction of the statute, and to the decision in this particular case.

The evidence adduced upon this trial and also the respective contentions of the parties were in conflict. It appears that these parties were married in June, 1921, and had lived together until January, 1926. The defendant was employed by the city of Birmingham as a member of the fire department and had been so employed for six years. His salary was $155 per month, and this was his only source of income. There appears to have been no rift in the marital relations until a short time prior to the alleged commission of the offense here complained of. It was insisted by the state, and the testimony of the prosecutrix tended to support the insistence, that the husband (defendant) voluntarily abandoned her on the 26th day of January, 1926. The defendant insisted and offered testimony in support thereof that an agreement was mutually had between the two to separate, and, aside from the testimony of these two parties, there was no other evidence as to what transpired between them on the occasion when the separation occurred. The parties, however, are agreed upon the matter of the financial provision by the husband for the wife after the time of the separation, that is to say, he was to pay her the sum of $50 per month, together with half of the rent, which he did for two months and a half, that is to say, for the last half of the month of January and for the entire months of February and March. The payment of the rent lasted for the month of February and the last half of the month of January, but was not included in the March payment, as the wife left the apartment the 1st of March, and thereafter the wife was unable to say what her rental expense was, as she went to stay with...