State v. Hellams
| Decision Date | 20 August 1946 |
| Docket Number | 15868. |
| Parties | STATE v. HELLAMS. |
| Court | South Carolina Supreme Court |
Blackwell Sullivan & Wilson, of Laurens, for appellant.
Hugh Beasley and W. H. Nicholson, both of Greenwood, for respondent.
This is an appeal from a conviction and sentence of the appellant on the charge of non-support of his minor children, under Section 1123 of the Code of 1942.
The indictment as drawn charged the non-support of the appellant's wife and minor children. The grand jury very properly returned a 'no bill' as to the wife, but returned a 'true bill' as to the minor children.
We will very briefly state the relevant facts. The prosecutrix and the appellant had lived together as man and wife for about seventeen years, during which time there were born seven children, three of whom died. The appellant worked regularly in the textile industry, as did his wife the greater portion of the time. At one period of time the prosecutrix (the wife of the appellant and the mother of the minor children here involved) undertook to operate a beauty parlor and boarded the beauty parlor operators. This beauty parlor was operated at a loss, a portion of which loss was borne by the appellant, and resulted in a slight dissension between this married couple. The bone of contention which furnished an excuse for the wife to move from the home provided by the appellant for her and the children involved was the fact that the appellant's mother had lived with them for approximately six years. The testimony of the prosecutrix tending to establish a case of 'mother-in-lawitis' is not too convincing; and the appellant testified that such claim on the part of the wife was unfounded, and was used by her as a convenient exculpation for separating from him. Be that as it may, on May 11, 1942, the wife rented another home about two miles distant in Greenwood County, in which County she and appellant were then living, and moved to same, taking with her practically all of the household furniture which she and the appellant had accumulated, and their four minor children. For a few weeks after this separation, the appellant voluntarily contributed to the support of his wife and children, and then discontinued this support. The appellant repeatedly asked for the custody of the children but the wife refused to let him have them. He then asked for two of them, and this request was refused. Even during the trial of this case, the prosecutrix averred that she would not give to the appellant the custody of the children. At one time the appellant instituted a proceeding for the possession of the children, which was resisted by the prosecutrix (the wife), but this action was not prosecuted to a conclusion. It is not claimed by the prosecutrix that the appellant ever at any time mistreated or abused her. Further the testimony for the appellant (and it is uncontradicted) shows that he was a man of good reputation, and within his means provided well for his family while they lived with him. In fairness to the appellant, it should also be here recorded that his wife wrote to him, stating that she had been unjust to him and asked his forgiveness for leaving him; and thereafter undertook to induce him to move to the home she had rented, and to bring with him his mother to live, although refusing to return to any home he might provide.
The foregoing is a brief summary of the salient relevant facts adduced upon the trial of the case in the Circuit Court.
The appellant has stated the 'Questions Involved' as follows, and the respondent does not take issue therewith:
'1. Should the State have been permitted over objection of defendant, to introduce testimony as to divorce proceedings and remarriage of defendant, when such testimony was not germane to the issues involved?
'2. When a wife over protest of her husband takes minor children from the home of her husband where he provided for them, should testimony as to conduct of wife with reference thereto be submitted to the jury on trial of husband for non-support of minor children?
'3. Has an able bodied man and a man capable of earning a livelihood any defense to a charge of abandonment and non-support of his minor children?
Upon the trial of the case, and without objection, the prosecutrix testified that the appellant had brought in the courts of Florida, in which State he had found employment, two proceedings for divorce, and had abandoned them when she filed answers thereto. When the prosecutrix was asked what happened to a third proceeding brought by the appellant for divorce, one of appellant's counsel objected, and in so doing stated that the appellant had procured a divorce and had remarried, but contended that this fact was not germane to the issue being tried. The trial Judge at first sustained the objection, but when he reversed his ruling the matter was not pursued further, the counsel for the appellant having admitted all that the prosecution desired to prove in refernece thereto. And in his charge to the jury the trial Judge told them
It will therefore be seen that there is no real basis for appellant's Question No. 1. The other stated 'Questions Involved' will be discussed together.
Section 1123 of the Code reads in part as follows: 'Any able-bodied man or a 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 deemed guilty of a misdemeanor, * * *'
In State v. Scurry, 114 S.C. 191, 103 S.E. 527, the Court held that the husband is required primarily to furnish the necessaries of life for his wife at his residence (citing State v. Stone, 111 S.C. 496, 98 S.E. 333), and that the same thing applies to his children. It was recognized in that case that the words in the statute, 'without just cause or excuse,' are of important significance.
The next case which comes to our attention is State v. Tucker, 118 S.C. 238, 110 S.E. 398, 399. That case is so nearly on all-fours with the instant case, and the opinion is so short that we reproduce it in full:
'Appeal by defendant from conviction under an indictment charging him with a violation of section 697 of the Criminal Code, failure to support his wife and child.
'The judgment of this court is that the judgment appealed from be reversed, and that the case be remanded to the court below, with instructions to direct a verdict under rule 27 (90 S.E. xii).'
In State v. Collins, 123 S.C. 487, 124 S.E. 338, in a brief opinion, the Court reversed a conviction for the non-support of a wife and children and directed a verdict of not guilty, citing State v. Scurry, supra, and State v. Tucker, supra.
In State v. Lancaster, 135 S.C. 412, 133 S.E. 824, the Court again recognizes the holding in State v. Scurry, supra; and further holds directly opposite to the law charged in the instant case, which will hereinafter be quoted.
This Court, in the comparatively recent case of State v. Stafford, 193 S.C. 474, 8 S.E.2d 849, 851, approved the following proposition of law charged the jury: 'If, however, the wife should, without just cause or excuse, leave her husband and carry her unmarried, minor children away from the home of her husband which he so provided for them, then under the law the husband would not be required to support them.' In this same case the Court also approved the charge that the unfaithfulness of the wife does not excuse the father from supporting his minor, unmarried children. This is, of course, a correct abstract proposition of law, but as stated in the Stafford case, it was for the jury to say whether, under all of the evidence, the defendant failed to furnish the actual necessaries of life to his minor children, without just cause or excuse.
The trial Judge in this case charged the jury, inter alia, as follows:
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