State v. Falkner

• Decision Date: 19 October 1921
• Docket Number: 90.
• Parties: STATE v. FALKNER.
• Court: North Carolina Supreme Court

108 S.E. 756

182 N.C. 793

STATE v. FALKNER.

No. 90.

Supreme Court of North Carolina

October 19, 1921

Appeal from Superior Court, Vance County; Cranmer, Judge.

David Falkner was convicted of willfully abandoning his wife without providing for her support, and appeals. New trial.

The prosecutrix and defendant were married June 2, 1918. The defendant enlisted in the navy three days later, and while stationed in Norfolk, Va., his wife spent some time with him there. He was discharged in January, 1919, and returned to his home in Henderson, where he lived with his wife until July, 1920. Defendant testified that he left the prosecutrix on account of her infidelity and because she had infected him with a venereal disease. There are no living children of the marriage. Upon the question of the wife's adultery the evidence was conflicting.

The defendant's principal exception is directed to the following portion of his honor's charge, dealing with the burden of proof:

"If you shall find the defendant abandoned his wife without providing adequate support for her, and that such abandonment and failure were provoked and cause by the infidelity of the wife of the defendant, or for any just cause he had abandoned his wife, then in either case you would acquit the defendant.

The burden being upon the defendant to satisfy you of the adultery of the wife, not beyond a reasonable doubt, nor by the greater weight of the evidence, but simply to your satisfaction, you will consider and pass upon all the evidence in the case in making up your verdict, and determine what weight you will give to it."

The court subsequently charged the jury as stated in the record:

"That the burden was on the state to satisfy them from all the evidence beyond a reasonable doubt that the defendant willfully abandoned his wife without providing adequate support for her, and that, if they were so satisfied, they would find defendant guilty, but, if they were not so satisfied, they would find the defendant not guilty."

There was a verdict of guilty; and from a judgment of 18 months on the roads pronounced thereon, the defendant appealed.

Clark C.J., dissenting.

J. H Bridgers, of Henderson, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY J.

Section 4447 of the Consolidated Statutes, under which the defendant is indicted, provides as follows:

"If any husband shall willfully abandon his wife without providing adequate support for such wife, and the children which he may have begotten upon her, he shall be guilty of a misdemeanor."

It will be observed that a willful abandonment is the conduct which is condemned by this enactment of the Legislature. Being a penal statute, we must apply the rule of strict construction, and we are not at liberty to extent its terms, by implication, to include cases not clearly within is meaning. State v. Colonial Club, 154 N.C. 177, 69 S.E. 771, 31 L. R. A. (N. S.) 387, Ann. Cas. 1912A, 1079; State v. Railroad, 122 N.C. 1052, 30 S.E. 133, 41 L. R. A. 246. Willfulness is an essential element of the crime, and this must be found by the jury. The issue, upon an indictment for a violation of the present law, is the alleged guilt of the defendant. He enters on the trial with the common-law presumption of innocence in his favor. When the state has shown an abandonment and the defendant's failure to provide adequate support, the jury may infer from these facts, together with the attendant circumstances, and they would be warranted in finding, if they are so satisfied beyond a reasonable doubt, that it had been done intentionally, without just cause or legal excuse--i. e., willfully. State v. Taylor, 175 N.C. 833, 96 S.E. 22.

The position just stated has been approved by us in a number of carefully considered decisions.

"The abandonment must be willful; that is, without just cause or excuse; unjustifiable and wrongful." State v. Smith, 164 N.C. 475, 79 S.E. 979.

Again, in State v. Morgan, 136 N.C. 628, 48 S.E. 670, Mr. Justice Walker, speaking for a unanimous court says:

"If the act may be innocent or not according to the intent with which it is done, or if its criminality depends upon the intent, it is incumbent on the state to show the intent or to show the facts and circumstances from which the intent may be inferred by the jury, and it is necessary that the jury should find the intent as a fact before the defendant charged with the commission of the act can be adjudged guilty of a crime"--citing State v. McDonald, 133 N.C. 680, 45 S.E. 582.

Unless the willfulness of the defendant's conduct is established, the offense is not made out; and this is a question of fact for the jury, under all the evidence, and not for the court. State v. King, 86 N.C. 603; State v. Wolf, 122 N.C. 1079, 29 S.E. 841; State v. Martin, 141 N.C. 832, 53 S.E. 874.

In this connection it may be well to observe that the next section (C. S. § 4448), dealing with what shall be deemed presumptive evidence of a willful abandonment, requires the showing of something more than a mere separation and failure to provide adequate support. These circumstances having been established, "then the fact that such husband neglects applying himself to some honest calling for the support of himself and family, and is found sauntering about, endeavoring to maintain himself by gaming or other undue means, or is a common frequenter of drinking houses, or is a known common drunkard, shall be presumptive evidence that such abandonment and neglect is willful." Thus it would appear that the Legislature selected the words of the statute under which the defendant is indicted with studied care and deliberation and with a full appreciation of their meaning.

The defendant is not required to offer any evidence, and his failure to do so is not to be taken against him. State v. Smith, supra. Hence upon the question of his wife's alleged infidelity or unfaithfulness the burden of proving the issue, as distinguished from the duty of going forward with the evidence, is not shifted to the defendant. He may put the question of her chastity in issue, by cross-examination or otherwise, but this does not reverse the position of himself and that of his wife and make him the prosecutor and his wife the defendant. She is not on trial. The burden is still with the state, under all the evidence, to satisfy the jury beyond a reasonable doubt of the defendant's guilt. State v. Woodly, 47 N.C. 276; State v. Wilbourne, 87 N.C. 529; State v. Hopkins, 130 N.C. 647, 40 S.E. 973; State v. Connor, 142 N.C. 700, 55 S.E. 787; State v. Leeper, 146 N.C. 655, 61 S.E. 585; and State v. A. C. L. R. Co., 149 N.C. 470, 62 S.E. 755.

It is sometimes said that the burden of producing evidence rests upon the party best able to sustain it, because of facts and circumstances peculiarly within his knowledge. Thus it was held in Farrall v. State, 32 Ala. 557, that, the existence of a license being a fact peculiarly within the knowledge of the party accused, it was incumbent upon him to show the license, even though the nonexistence thereof was the gravamen of the offense charged. To like effect, and for the same reason, are our own decisions. State v. Morrison, 14 N.C. 299; State v. Smith, 117 N.C. 809, 23 S.E. 449; State v. Emery, 98 N.C. 670, 3 S.E. 636; State v. Glenn, 118 N.C. 1194, 23 S.E. 1004; State v. Holmes, 120 N.C. 576, 26 S.E. 692. But in the instant case the alleged adultery of the defendant's wife is not a fact peculiarly within the defendant's own knowledge. Indeed, if this rule is to be invoked here, and we do not think it is, it might well be said that such is undoubtedly within the knowledge of the prosecutrix. At any rate, we hold that the raising of this question does not shift the burden of the issue to the defendant. Govan v. Cushing, 111 N.C. 458, 16 S.E. 619. On the other hand, in a case like the one at bar, where the husband is indicted for a willful abandonment and nonsupport, there is no presumption of law or of fact against the wife's virtue. She not being on trial, the matter is left at large, and it is an open question, just like any other question of fact, to be determined by the jury. Certainly there is no presumption that she has committed adultery, or that she has been unfaithful to her marriage vow.

The position here taken with respect to the burden of the issue, has been approved in a long line of decisions, and is nowhere better stated than by Ruffin, J., in State v. Wilbourne, 87 N.C. 529, as follows:

"The general rule most undoubtedly is that the truth of every averment, whether it be affirmative or negative, which is necessary to constitute the offense charged, must be established by the prosecutor. The rule itself is but another form of stating the proposition that every man charged with a criminal violation of the law is presumed to be innocent until shown to be guilty, and it is founded, it is said, upon principles of natural justice; and so forcibly has it commended itself by its wisdom and humanity to the consideration of this court that it has never felt willing, whatever circumstances of difficulty might attend any given case, to disregard it."

Of course, where an abandonment and nonsupport are both established or admitted, it may be necessary for the defendant to come forward with his evidence and proof, or else run the risk of an adverse verdict. But where there is no opposite presumption, sufficient to overcome the presumption of innocence, the most that can be required of him, under our system of jurisprudence, is explanation, not exculpation. The defendant is not required to show his innocence. The state must establish his guilt beyond a reasonable doubt, and the burden of this ultimate issue...