State v. Brisbane Palmer

• Citation: 110 A. 436,94 Vt. 278
• Parties: STATE v. BRISBANE PALMER
• Decision Date: 11 May 1920
• Court: United States State Supreme Court of Vermont

110 A. 436

94 Vt. 278

STATE v. BRISBANE PALMER

Supreme Court of Vermont

May 11, 1920

January Term, 1920.

COMPLAINT under G. L. 3536 for nonsupport of respondent's wife. Plea, not guilty. Trial by jury in the Barre City Court, Washington County, Elwin L. Scott, City Judge. Verdict, guilty. Judgment on the verdict. The respondent excepted. The opinion states the case.

Judgment reversed, and cause remanded, with leave to the State to apply for leave to amend its complaint within a reasonable time. If the State fails so to apply, let judgment on the verdict be arrested.

Richard A. Hoar for the respondent.

Earle R. Davis, State's Attorney, for the State.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

The respondent is charged with a violation of G. L 3536, which provides that "A husband who shall, without just cause, desert or wilfully neglect or refuse to provide for the support and maintenance of his wife in destitute circumstances," etc., "shall be imprisoned * * * or fined," etc.

The State called the respondent's wife as a witness. On cross-examination she was shown a written report from the director of the State laboratory, which indicated that the respondent had gonorrhea about May 20, 1919, and was asked whether she had ever seen it before. She said she had not. She was then asked, in substance, if she ever had trouble with her husband about giving him that disease, and answered, "No." On redirect she was asked if the respondent had told her about his relations with other women. This was objected to by the respondent and excluded. Thereupon the prosecuting attorney stated, in substance: "My contention is that if the respondent has gonorrhea, as he claims he has, and I do not doubt it, it could have laid dormant for the last four or five years." Further statement was interrupted by the respondent's objection to the examiner stating his contention in the presence of the jury, on the ground that it was immaterial, and an exception was allowed.

What was said about respondent in fact having gonorrhea, if improper, was harmless, because he claimed that he had it and gave evidence to show that fact. What was said about the disease lying dormant was proper, in view of the cross-examination. If the respondent had that disease it was permissible for the State to show, if it could, that he did not contract it from his wife, and it was permissible, too, for the examiner to indicate to the court how he proposed to show that fact. This is all that was done. Moreover, the statement could not have harmed the respondent because the State later introduced evidence, without objection, to show the fact to be as stated.

The respondent waived his exception to the overruling of his motion for a directed verdict, made at the close of the State's evidence, by proceeding with the trial. Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 22 A. 656.

At the close of all the evidence the respondent moved for a directed verdict on the ground that the State had failed to establish the essential elements of the offence charged. The motion was overruled, subject to the respondent's exception. It would serve no purpose to recite the tendency of the State's evidence, for it clearly made a case for the jury.

After the verdict and before judgment, the respondent moved in arrest of judgment, for that the complaint is fatally defective in not alleging that the refusal to provide, etc., was wilful. The allegation in the complaint is that the respondent "did without just cause refuse to provide," etc.

The State contends that the word "wilfully" does not qualify the word "refuse" but applies to the word "neglect" only. We do not think this contention sound. Such certainly is not the grammatical, nor do we think it the reasonable, construction to be given this statute.

The State says that the word "refuse" implies wilfulness. This might well be, if the meaning of the word "wilfully" is to be treated as synonymous with "intentionally," or words of like meaning, as it sometimes is; but the word as here used has a broader meaning. Though given different definitions under different circumstances, it is said in State v. Burlington Drug Company, 84 Vt. 243, 252, 78 A. 882, that the word "wilful" cannot well mean less than intentionally and by design. And such has been held to be the meaning of the word "wilfully" as used in P. S. 5815 (G. L. 6925). State v. Muzzy, 87 Vt. 267, 88 A. 895.

These words, "wilful" and "wilfully," when used with reference to violations of the criminal law mean something more than a voluntary act, and more, also, than an intentional act which is in fact wrongful. They include the idea of an act intentionally done with a wrongful purpose, a bad purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness. Spurr v. United States, 174 U.S. 728, 43 L.Ed. 1150, 19 S.Ct. 812; Potter v. United States, 155 U.S. 438, 39 L.Ed. 214, 15 S.Ct. 144; Evans v. United States, 153 U.S. 584, 38 L.Ed. 830, 14 S.Ct. 934; Felton v. United States, 96 U.S. 699, 24 L.Ed. 875; State v. Muzzy, 87 Vt. 267, 88 A. 895; Commonwealth v. Kneeland, 37 Mass. 206, 20 Pick. 206; 1 Bishop, Crim. Law, § 428.

It is apparent that, given this meaning, the omission of the word "wilfully" would have been fatal on demurrer. Nor is it cured by verdict. The earlier authorities on this subject are collected and discussed by the late CHIEF JUDGE TAFT in an exhaustive opinion in State v. Freeman, 63 Vt. 496, 22 A. 621; and the later authorities, or many of them, are noticed in State v. Eaton, 92 Vt. 290, 102 A. 1025.

The rule deducible from these cases is tersely stated in Baker v. Sherman & Miller, 73 Vt. 26, 30 50 A. 633, 635: "If the declaration omits to allege any fact essential to the right of action, and it is...