State v. Bagwell

• Decision Date: 13 August 1923
• Docket Number: 11388.
• Citation: 118 S.E. 767,125 S.C. 401
• Parties: STATE v. BAGWELL.
• Court: South Carolina Supreme Court

118 S.E. 767

125 S.C. 401

STATE v. BAGWELL.

No. 11388.

Supreme Court of South Carolina

August 13, 1923

Appeal from General Session's Circuit Court of Laurens County Hayne F. Rice, Judge.

Sam Bagwell was convicted of failing to support his wife and minor child, and he appeals. Affirmed.

Phil D Huff, of Laurens, for appellant.

W. S Blackwell, Sol., of Laurens, for the State.

MARION J.

The defendant was convicted of a violation of section 697, Criminal Code 1912, which provides that an ablebodied man who, without just cause or excuse, abandons or fails to support his wife, or minor unmarried children, shall be guilty of a misdemeanor. He appeals upon the ground that the circuit judge committed error of law in denying his motion for a directed verdict of "not guilty."

There was evidence tending to establish that the defendant was lawfully married to his wife, Mary, in July, 1921; that he took her to his mother's home in the Laurens Mill village; that he had told her before marriage that they would go to housekeeping in three weeks after the marriage; that in November, some four months after the marriage, defendant having refused to go to housekeeping or to make other arrangements for a separate home, his wife left the house presided over by the defendant's mother, and returned to that of her parents in the same village; that in March following the wife gave birth to a child which has ever since been in her custody; that the defendant, an able-bodied young man, had contributed nothing to the support of his wife subsequent to her departure from his mother's home and nothing to the support of his child; that during the wife's stay in the home with defendant's mother, the mother had subjected the wife in defendant's presence to cruelly abusive treatment, in that she called the son's wife "a red-headed whore" and "a red-headed bitch," had charged her with unfaithfulness to her husband, had told her son to "take her out," and had threatened her with violence, etc.; that after the wife left the home occupied in common by the defendant and his mother, she had worked in the mill, had saved her money, had rented a house, bought furniture, and sent for the defendant to come and live with her there; that he had refused, in violent and insulting language, to accept her invitation.

Appellant's legal position is that the wife forfeited the right to the husband's marital care and support by leaving and remaining away from the home he had provided for her. His contentions are that the husband has the right to determine the marital abode; that the wife has no right to leave the abode so fixed except for conduct on the part of the husband which amounts to saevitia (Hair v. Hair, 10 Rich. Eq. 173; Wise v. Wise, 60 S.C. 442, 38 S.E. 794); that subjecting the wife to mere insulting and abusive words of a mother-in-law may not be held to constitute such legal cruelty as will justify the wife in leaving the marital abode chosen by her husband; and that under the facts of the case at bar, for the husband's failure to support his wife and child, there was as a matter of law "just cause or excuse."

Appellant's position is untenable. Marriage imposes upon the husband the duty at common law of providing the wife with a reasonably adequate and suitable home and support. 13 R. C. L. p. 1188 § 220; State v. English, 101 S.C. 304, 85 S.E. 721, L. R. A. 1915F, 977. While our statute (section 697) is designed in part to redress the state's or society's grievance flowing from a breach of the husband's duty in that regard (State v. English, supra), there can be no doubt that it is also intended to supplement other means and remedies for enforcing the moral and social duty of the husband to support his wife, and to that extent is remedial in purpose, although it provides for the infliction of a penalty, and is to be liberally interpreted to accomplish the legislative intention. 13 R. C. L. 1191, § 223; State v. Waller, 90 Kan. 829, 136 P. 215, 49 L. R. A. (N. S.) 588. But that the wife owes the reciprocal duty of living with the husband, who has discharged his obligation to provide her with a reasonably suitable home and support, is equally fundamental. The husband incurs no liability, either civil or criminal, for a failure or refusal to support a wife who has deserted a reasonably suitable place of abode chosen by him, or who without just cause or excuse has abandoned his bed and board. 19 C.J. 59, § 113. It may be further conceded, as appellant contends, that under the rule recognized and applied in this jurisdiction the wife may not lawfully leave...