State Of West Va. v. Davis

• Decision Date: 24 March 1936
• Docket Number: (No. 8261)
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. George Davis

117 W.Va. 284

State of West Virginia

v.George Davis

(No. 8261)

Supreme Court of Appeals of West Virginia.

Submitted February 4, 1936.

Decided March 24, 1936.

Husband and Wife

Evidence of adultery committed by a wife, while the husband is supporting her under a separation agreement, is admissible in defense of a non-support prosecution against him under sections 1 and 2, article 8, chapter 48, Code 1931.

Error to Circuit Court, Kanawha County.

George Davis was convicted of deserting his wife and wilfully neglecting to provide for her support and maintenance, and he brings error.

Reversed and remanded.

Kay & Casto, for plaintiff in error.

Carl L. Davis, Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.

Litz, Judge:

This is a proceeding under sections 1 and 2, article 8, chapter 48, Code 1931, in which it is charged that de- fendant, George Davis, "did, without just cause, desert and wilfully neglect and refuse to provide for the support and maintenance of" his wife. To the judgment, rendered upon a verdict of conviction, requiring him to pay her $40.00 per month for support and maintenance, defendant obtained this writ of error.

It is a misdemeanor, under section 1 of the statute (punishable by fine not exceeding $500.00 or imprisonment, at hard labor, not exceeding one year) for a husband "without just cause" to "desert or wilfully neglect or refuse to provide for the support and maintenance of his wife, in destitute and necessitous circumstances." Section 2 provides that the justice, before whom the defendant is convicted, may, in lieu of or in addition to the penalty prescribed in section 1, require the husband to pay periodical sums to his wife and release him upon bond, with good security, in the penalty of not less than $500.00.

The parties were married in 1915, and lived together as husband and wife until 1931, when it is alleged, he deserted her and began cohabiting with another woman. He returned home some months later for a few days, at which time he entered into a contract with his wife agreeing to pay her a substantial monthly allowance. (The terms of the contract are not shown.) Payments were made regularly under the contract until February, 1935. He then refused to make further payments on the ground that she had recently been guilty of adulterous conduct; whereupon this proceeding was instituted.

The chief point of error is the refusal of the trial court to admit evidence of the alleged adulterous conduct on the part of the wife. Defendant, in support of his contention that such evidence was admissible, relies especially upon the case of State v. Falkner, 182 N. C. 793, 108 S. E. 756, 17 A. L. R. 986. The defendant, in that case, was proceeded against for the non-support of his wife under a statute similar to ours. He abandoned her because she had committed adultery. In the opinion of the case, the court said: "That a husband may not be convicted for abondoning an adulterous or unfaithful wife is a position so well fortified by every reasonable consideration and by the force of its own righteousness as to meet with the approval of the common judgment of men. To argue otherwise is but to complain at the standard of human conduct, established in accordance with the eternal fitness of things and in keeping with the everlasting verities. So far as our investigation discloses, no court has ever held to the contrary." The same rule is stated in 17 A. L. R. at page 999, as follows: "As a general rule, under a statute punishing a husband for abandonment of his wife, the adultery of the wife or any other act committed by her after marriage, and before abandonment, which would entitle the husband to a divorce, is a good defense." The state cites Hall v. State, 100 Ala. 86, 14 So. 867, and Gobel v. State, 15 Ala. App. 178, 72 So. 706, involving a non-support statute similar to the West Virginia Act, to sustain the ruling of the trial court. In the first case, it is said: "Misconduct of the wife after abandonment affords no excuse or justification for the abandonment, though misconduct after marriage and before abandonment would do so." In the latter case, by way of answer to the defense...