State v. Garris

• Decision Date: 07 June 1923
• Citation: 121 A. 292
• Parties: STATE v. GARRIS.
• Court: New Jersey Supreme Court

121 A. 292

STATE

v. GARRIS.

Supreme Court of New Jersey.

June 7, 1923.

Error to Court of Oyer and Terminer, Essex County.

Joseph H. Garris was convicted of deserting and failing to provide for his wife and minor child, and he brings error. Reversed and remanded, with direction.

Argued February term, 1923, before the CHIEF JUSTICE and SWAYZE and TRENCHARD, JJ.

Charles M. Mason, of Newark, for plaintiff in error.

J. O. Bigelow, Prosecutor of the Pleas, of Newark, for the State.

SWAYZE, J. The defendant was convicted on two indictments for desertion tried together. One charges him, as husband of Margaret E. Garris and father of Hamilton Garris, with unlawfully deserting and willfully refusing and neglecting to provide for and maintain the said Margaret and Hamilton, a minor child.

The other indictment charges the defendant, as husband of Margaret Garris and father of Joseph Hamilton Garris, Jr., with unlawfully deserting and willfully refusing and neglecting to provide for and maintain Margaret, and Joseph Hamilton Garris, a minor child. These indictment's are both drawn under the act of 1903, as amended in 1904 (C. S p. 1770, pi. 73a). Neither contains the averments necessary under the act of 1917 (P. L. p. 110). That statute only reaches the case of a husband, and not of a father, who willfully neglects or refuses to provide for the support and maintenance of his wife in destitute or necessitous circumstances.

The first point made on behalf of the defendant is that the indictments against him are found under a statute which no longer exists. It is not claimed that the act of 1903, as amended, has been expressly repealed. It is said, however, that it is impliedly repealed by the act of 1917. We need not cite authorities to the point that to repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old, that they cannot stand together. In the present case the two statutes are very different. One applies to a husband who deserts his wife in destitute or necessitous circumstances, or refuses to provide for the support and maintenance of his child or children in destitute or necessitous circumstances. The other applies to husbands or fathers who desert and willfully refuse or neglect to provide for wife or minor child without requiring that they should be in destitute or necessitous circumstances. The punishment differs in the two statutes. This is quite enough to distinguish them, and we think the defendant might properly be convicted under the earlier one as he was.

2. It is next said that the court erroneously ruled that there were two separate desertions, one in 1917, and one in 1919. It seems to be thought that desertion is an offense committed once for all instead of being continuous. We see no difficulty in holding that the offense is committed whenever there is an overt act of violation of the statute.

The trial judge charged favorably enough to the defendant. He told the jury that the desertion must be willful; that if the defendant simply refrained from paying anything on the assumption that negotiations were pending for the adjustment of the amount, that would not be such a desertion or such a neglect to provide as would be criminal; that if a wife refuses to live with her husband, if she refuses to go to a suitable place which he proposes to provide, or to any place which he proposes to provide, that would not constitute desertion; that it was her duty to go with him and make her home with him if he provides for her a suitable home, and that if she refuses to do so it does not constitute desertion on his part because the home does not...