State v. Collins

• Decision Date: 26 June 1959
• Docket Number: No. 17547,17547
• Citation: 235 S.C. 65,110 S.E.2d 270
• Parties: STATE, Respondent, v. Charles A. COLLINS, Appellant.
• Court: South Carolina Supreme Court

Page 270

110 S.E.2d 270

235 S.C. 65

STATE, Respondent, v. Charles A. COLLINS, Appellant.

No. 17547.

Supreme Court of South Carolina.

June 26, 1959.

Certiorari Denied Nov. 16, 1959.

See 80 S.Ct. 199.

DeLoach, Wilson & DeLoach, Camden, C. T. Graydon, Columbia, for appellant.

T. Pou Taylor, Sol., John W. Foard, Jr., Asst. Sol., Columbia, Murchison, West & Marshall, Camden, for respondent.

MOSS, Justice.

Charles A. Collins, the appellant herein, was indicted, tried and convicted at the February, 1959, term of Court of General Sessions for Kershaw County, South Carolina, for failure to support his wife and child. The appellant was convicted of a violation of Section 20-303 of the 1952 Code of Laws of South Carolina, which provides:

'Any able-bodied man or man capable of earning or making a livelihood who shall, without just cause or excuse, abandon or fail to supply the actual necessaries of life to his wife or to his minor unmarried child or children dependent upon him shall be guilty of a misdemeanor * * *' The appellant and Marilyn Perry were ceremonially married at York, South Carolina, on September 1, 1957, each being eighteen years of age. They had met in the summer of that year at Myrtle Beach, South Carolina, where the wife was participating in a beauty contest. At the time of their marriage, the appellant had attended Campbell College at Buies Creek, North Carolina, for one year, and a summer session at the University of North Carolina, and was living with his parents at Myrtle Beach, South Carolina. The wife had completed high school and was living with her mother in Kershaw County, South Carolina. The appellant and his wife attended Campbell College for nine months, completing the 1958 term, and then went back to Myrtle Beach where they stayed for two or three weeks. They attended school at Presbyterian College in Clinton, South Carolina, for nine weeks during the summer term. After leaving summer school at Presbyterian College, they visited and stayed with the wife's mother in Kershaw County for a short period of time, and visited and stayed with the parents of the appellant at Myrtle Beach for a short period of time. In September, 1958, they went to Athens, Georgia, so that the appellant could enroll as a student and attend the University of Georgia. They had expected to live in a trailer to be purchased by Charles A. Collins, but because of the non delivery of the trailer they spent the first night in a hotel in Athens, Georgia, and the next two nights in the home of the owners of a trailer park where they had planned to put their trailer. It appears from the evidence that after staying at the home of the owners of the trailer park, that the appellant and his wife moved to an apartment, which was unfurnished, and was to be used by them until the arrival of their trailer. This apartment was partially furnished by the appellant and his wife so that it could be temporarily occupied. The wife had been in Athens, Georgia, with the appellant for about a week, and until September 23, 1958, when she left him and returned to the home of her mother in Kershaw County. At the time the wife left she was in the eighth month of pregnancy. Thereafter, on November 20, 1958, a son, Robert Perry Collins, was born of this marriage, in a hospital in Lancaster, South Carolina.

When this case was called for trial in the Court of General Sessions for Kershaw County, South Carolina, the appellant objected to the jurisdiction of the Court. The objection was upon the ground that the desertion, if any occurred, took place in the State of Georgia, and hence the court had no jurisdiction. It was further asserted that the undisputed facts in the case show that the appellant and his wife have never made their home in Kershaw County; that the place in South Carolina where the appellant lived before marriage and which he called home after marriage was Myrtle Beach, in Horry County, South Carolina; that they were living temporarily in Athens, Georgia at the time the separation of the parties took place. The first question for determination is whether the Court of General Sessions of Kershaw County had jurisdiction to try this case.

The appellant asserts that under Art. III, Section 2 of the Constitution of the United States, the trial of all crimes shall be by a jury and shall be held in the State where said crimes shall have been committed. He further contends that under Art. I, Section 17 of the 1895 Constitution of South Carolina, that, 'No person shall be held to answer for any crime * * * unless on a presentment or indictment of a grand jury of the County where the crime shall have been committed, * * *'

This Court has held that the offense of nonsupport is made by the Statute, Section 20-303, of the 1952 Code of Laws of South Carolina, a continuing one. State v. Stone, 111 S.C. 496, 98 S.E. 333, and State v. Nesmith, 185 S.C. 341, 194 S.E. 160, 163.

In the case of State v. Nesmith, supra, this Court quoted with approval from 8 R.C.L., at page 310, Criminal Law, Section 336, the following:

'Generally speaking, it is a fundamental rule of criminal procedure that one who commits a crime is answerable therefor only in the jurisdiction where the crime is committed, and in all criminal prosecutions, in the absence of statutory provision to the contrary, venue must be laid as in the county of the offense, and it must be proved as laid. Such an offense as desertion or failure to provide for a wife or children is however negative, the omission of a duty, and therefore venue depends on the question where the omission to perform that duty occurs.'

In the case of State v. Stone, supra [111 S.C. 496, 98 S.E. 333], the husband was indicted for abandoning and failing to supply the actual necessities of life to his wife. The wife was a native of Lexington County, and upon marriage moved to Aiken County to live with her husband. The husband left his home in Aiken County and stripped the house of all the furniture. The wife returned to the home of her father in Lexington County. The defendant was indicted in Lexington County and moved to dismiss the indictment on the ground that the Court in said County was without jurisdiction to try the case, because the offense, if any, was committed in Aiken County. The Presiding Judge held that the Court in Lexington County was without jurisdiction and dismissed the case. The State appealed from this ruling. This Court reversed the ruling of the lower Court, and said:

'Abandonment may be one act, or a continuing act, according to circumstances. The offense is made by the statute a continuing offense. While it is ordinarily true that a husband is only required to furnish the necessities of life at his place of residence, yet, if he destroys his home and provides no other place where she can live, then, from the necessity of the case, she must live where she can live, and the place where she can live is the place where he must provide for her. Mrs. Stone found a home in Lexington county and it was his failure to supply the necessities in Lexington that was a violation of the statute.'

In the case of State v. Free, 158 S.C. 515, 155 S.E. 838, 839, the defendant was charged with nonsupport of his minor child. It appears that because of the conduct of the husband, the wife left her husband's home and kept the child in her custody. The defendant moved for a directed verdict of 'not guilty' on the ground that he was required to support his minor child only at the place of his residence, and that the evidence showed conclusively that the wife had left the home and taken the child with her. The motion was refused, and upon appeal to this Court the judgment below was affirmed and this Court said:

'The obligation of a husband to his wife is paramount, an it is his duty to provide her a home in accordance with his means, where she may live as the object of his care and comfort, without interference from members of the household; and 'if such a home is not provided, the wife is justified in leaving, and not only is not guilty of desertion in so doing but may charge the husband with constructive desertion" State v. Bagwell, 125 S.C. 401, 118 S.E. 767, 768.

We come now to the practical question of whether the appellant was guilty of such conduct within the family circle as would justify the wife in leaving him and charging him with constructive desertion. If he were guilty of such conduct, and by reason thereof she left him and returned to the home of her mother, it was his duty to furnish her, and the child born after the separation, the necessities of life at the home of her mother in Kershaw County, South Carolina.

We summarize the testimony given by the wife as to her reason for leaving Athens, Georgia, and returning to the home of her mother. She testified that she was in the eighth month of her pregnancy and that on September 22, 1958, that she and her husband got ready to go to bed and 'Charles tried to make love to me and I resisted him'. She said he became very angry and threw his hand over her face and hurt the side of her face and nose, and that a struggle ensued, and she got up and went to the living room, and the husband pushed her on to the floor. She says that she advised him that she was going to leave him and he got in the bed and laughed and said 'Go ahead, and leave me. Don't talk about it; do it. I only have to give you $100.00 baby support.' She testified that in her pajamas and housecoat she left the home and went to the police station at Athens, Georgia, to find out what could be done about what had taken place. She testified that she resisted the marital advances of her husband because she was in the eighth month of her pregnancy and the doctor had advised her against such. She said she had told him of the advice of the physician that engaging in marital relations might injure her or the life of her unborn baby, but even with such information he tried to force himself upon...