State v. Eskew

• Decision Date: 23 July 1945
• Docket Number: 15756.
• Parties: STATE v. ESKEW.
• Court: South Carolina Supreme Court

34 S.E.2d 767

211 S.C. 565

STATE v. ESKEW.

No. 15756.

Supreme Court of South Carolina

July 23, 1945

Leon W. Harris, of Anderson, for appellant.

Rufus Fant, Sol., of Anderson, for respondent.

TAYLOR Justice.

This appeal comes to this Court from the General Sessions Court of Anderson County where the complaining witness Mrs. Nellie Eskew, procured a warrant charging her husband James H. Eskew, the defendant, with abandonment and non-support of herself and five children. On October 11 1944, defendant made bond for his appearance at the succeeding term of Court. At the term of Court beginning Monday, November 20, 1944, a bill of indictment was returned by the Grand Jury charging the defendant with abandonment and non-support, one count with reference to his wife and five separate counts with reference to the children. On Saturday November 25, defendant was tried in his absence, found guilty, and a sealed sentence imposed. Court adjourned sine die Saturday, November 25, 1944. A bench warrant was issued for the arrest of the defendant, and on December 4 he went before the Clerk of Court and had the sentence opened and read to him and immediately thereafter served notice of intention and does now appeal to this Court.

The first question raised is whether or not the Presiding Judge violated Art. 5, Sec. 26 of the Constitution of 1895, which provides that 'Judges shall not charge juries in respect to matters of fact, but shall declare the law' in that he did not elaborate upon or explain sufficiently to the jury the meaning of

(a) 'an Able Bodied Man or a Man Capable of Earning or Making a Livelihood,' (First Exception)

(b) 'Without Just Cause or Excuse,' [Second Exception)

(c) 'Abandon or Fail to Supply the Actual Necessaries of Life,' (Third Exception)

The appellant was indicted under Sec. 1123 of the Code of 1942 and the Judge in his charge to the jury read this section charging them in clear and concise language as to the legal principles involved. The phrases are composed of the most ordinary words and appellant could not have possibly been prejudiced by the failure of the Court to charge more fully the meaning of such simple phrases. Had appellant desired the Court to define the phrases it was his duty to make his wishes known. State v. Wardlaw, 153 S.C. 175, 150 S.E. 614; State v. Hendrix, 86 S.C. 64, 68, S.E. 129; State v. Chastain, 85 S.C. 64, 67 S.E. 6; State v. Harrell et al., 142 S.C. 24, 140 S.E. 258; State v. Craig, 161 S.C. 232, 159 S.E. 559; State v. Roof, 144 S.C. 118, 142 S.E. 238; State v. Jacobs, 111 S.C. 283, 97 S.E. 835; State v. Stafford, 193 S.C. 474, 8 S.E.2d 849; State v. Du Rant, 87 S.C. 532, 70 S.E. 306; State v. Dodson, 16 S.C. 453.

The fact that defendant was not in Court and could not make the request for amplification of the charge avails him nothing, since he gave bond on October 11, 1944, for his appearance at the succeeding term of Court and now offers only the excuse that the complaining witness misled him by leading him to believe the case would not be tried. It was his duty to comply with the provisions of the bond and in the absence of a proper showing will be charged therewith. The Presiding Judge substantially charged the law applicable to the case and no request being made for further charges all exceptions relating thereto are hereby overruled as being without merit.

The appellant further contends that the indictment was fatally defective as to the first count in that it failed to charge that his wife, Mrs. Nellie Eskew, was 'dependent upon him.' Section 1004, Code of 1942, provides 'every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer, or on motion to quash such indictment before the jury shall be sworn, and not afterwards.'

Section 1003, Code of 1942, provides 'every indictment shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as now required by law, charges the crime substantially in the language of the common law or of the statute prohibiting same, or so plainly that the nature of the offense charged may be easily understood; and if the offense be a statutory offense, that the same be alleged to the contrary to the statute in such case made and provided.'

The indictment in instant case charged the exact language of the statute, therefore this exception is without merit. State v. English, 101 S.C. 304, 85 S.E. 721, L.R.A.1915F, 977; State v. Redmond, 150 S.C. 452, 148 S.E. 474.

The next question raised is whether or not there was error in the sentence of the Court in that payment was to be made to Nellie Eskew without limitations and without stating therein what the money was to be...