State v. Ins

• Decision Date: 29 December 1922
• Docket Number: (No. 11075.)
• Citation: 115 S.E. 232
• Court: South Carolina Supreme Court
• Parties: STATE. v. GO INS.

115 S.E. 232

STATE.

v.GO INS.

(No. 11075.)

Supreme Court of South Carolina.

Dec. 29, 1922.

Appeal from General Sessions Circuit Court of Richland County; W. H. Townsend, Judge.

John Goins was convicted of nonsupport of his wife and his minor daughter, and he appeals. Sentence reversed, and case remanded for resentence in accordance with law.

Thomas B. Hair and Graydon & Graydon, all of Columbia, for appellant.

Solicitor A. F. Spigner, of Columbia, for the State.

GARY, C. J. The following statement appears in the record:

"The defendant, John Goins, was indicted and tried at the June term of the court of general sessions for Richland county, 1922, on an indictment charging him with nonsupport of his wife, Etta Goins, and his daughter, Grace Go-ins, who is 17 years of age and unmarried. The case was tried at the said term of court on June 20, 1922, and resulted in a verdict of 'guilty, ' whereupon Hon. W. H. Townsend imposed the following sentence, to wit: 'The sentence of the court is that the prisoner, John Goins, be held to labor upon the public works of Richland county for a period of one year, or be confined at hard labor in the state penitentiary for a like period. This sentence to be suspended so long as the defendant shall pay to the clerk of this court $50 monthly, on the 20th day of each month, to be applied by said clerk to the support of Etta Goins, the wife, and Grace Goins, the minor child of said defendant, and upon the said defendant giving bond in the sum of $300 conditioned upon bis supporting and maintaining his said wife and child by making said monthly payments to the said clerk of court for their benefit and support.' In due time the defendant served notice of intention to appeal to the Supreme Court from the said sentence.

"(1) Because his honor erred in sentencing the defendant to serve 12 months on the chain gang or pay to his wife the sum of $50 per month; said sentence being contrary to law and beyond the jurisdiction of his honor to impose.

"(2) Because said sentence was not according to section 697 of the Criminal Code.

"(3) Because under the statute 697 of the Criminal Code, punishment of the defendant could only be for one year, or to a fine not exceeding $2"00, and his honor was without jurisdiction to impose upon the defendant the payment of $50 per month for 12 months, thus making the fine $600, instead of $200.

"(4) Because his honor erred in charging the jury that the burden of proof rested upon the defendant to show that he had a just cause or excuse, when he should have charged them the burden rested upon the state to prove its case beyond a reasonable doubt, including everything in the statute necessary to convict.

"(5) Because the statute is a criminal one, and must be strictly construed, and it is incumbent upon the state to prove everything necessary to convict, and is therefore necessary for the state to prove that the defendant, without just cause or excuse, had abandoned or failed to provide the actual necessaries of life to his wife or minor child and his honor erred in charging to the contrary."

Section 697 of Criminal Code 1912 is as follows:

"Any able-bodied man 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 misde meanor, and, upon conviction thereof, shall be imprisoned for a term not exceeding one year, or be liable to a fine not exceeding two hundred dollars: Provided, that if he, either before or after conviction, shall give bond, with one or more sureties, approved by the clerk of the court, in the sum of not less than $300.00, conditioned upon his supporting and maintaining his said wife or said minor unmarried child or children, he shall not be imprisoned or the fine imposed until the condition of said bond is broken."

His honor the presiding judge was authorized by said section to impose an alternative sentence, but it could only be imprisonment for a term not exceeding one year, or a fine not exceeding $200. But it was a question for the court to determine, which of the alternative sentences should be imposed. A similar question arose in the case of State v. Davis, 86 S. C. 208, 68 S. E. 532, in which this court used these words:

"The appellant contends that the judgment after providing for imprisonment should have further provided an alternative of fine. Such a construction of the statute would give the prisoner the right to determine whether he should suffer fine or imprisonment, whereas the statute leaves it to the court to determine what shall be the sentence either by fine or by imprisonment."

Not only was there error on the part of his honor, the circuit judge, in failing to determine whether the sentence should be imprisonment for a term not exceeding one year or a fine not exceeding $200, but there was error, likewise, in imposing an alternative sentence that exceeded a fine of $200. Furthermore, if the alternative sentence was enforced, it would have the effect of depriving the defendant of his right to relief under the proviso in said section.

The exceptions also assign error on the part of his honor, the presiding judge, in ruling that the burden of proof rested upon the defendant to show that he had a just excuse for failure to support his wife and daughter. The case of State v. Barden, 64 S. G. 206, 41 S. E. 959, shows that the exceptions raising this question cannot be sustained.

As the error, however, merely pertains to the sentence imposed upon the defendant, by his honor, the presiding judge, it does not entitle him to a new trial, but merely to a new sentence in conformity to the requirements of the statute. State v. Baker, 58 S. C. 111, 36 S. E. 501; State v. Durham, 89 S. C. 134, 71 S. E. 847.

The sentence of the circuit court imposed on the defendant is reversed, and the case remanded in order that he may be resentenced, in accordance with the requirements of law.

WATTS, FRASER, and MARION, JJ., concur.

COTHRAN, J. (concurring). Indictment against the defendant for nonsupport of hiswife and child. Trial was had before Judge Townsend and a jury at June term, 1922, of the court of general sessions for Richland county; Verdict, "Guilty." The sentence of the court was as follows:

"The sentence of the court is that the prisoner, John Goins, be held to labor upon the public works of Richland county for a period of 1 year, or be confined at hard labor in the state penitentiary for a like period. This sentence to he suspended so long as the defendant shall pay to the clerk of this court $50 monthly, on the 20th day of each month, to be applied by said clerk to the support of Etta Goins, the wife, and Grace Goins, the minor child of said defendant, and upon the said defendant giving bond in the sum of $300, conditioned upon his supporting and maintaining his said wife and child by making said monthly payments to the said clerk of the court for their benefit and support."

The exceptions raise but two questions: (1) An alleged error in the judge's charge; (2) the validity of the sentence imposed upon the defendant.

As to the first question: The presiding judge charged the jury as follows:

"Now, in order to convict, it must appear first, that the defendant is the husband of the wife and the father of the child and that he is an able-bodied man, able to work, and that he has abandoned them—left them without providing for their support or failed to supply them with the necessaries of life, and in so abandoning them, " or failing to supply them with the necessaries of life he is without just cause or excuse. If he has a just cause or excuse for abandoning his wife or child, and shows that, by the preponderance of the evidence, the jury should acquit him—if he can show cause or excuse for abandoning his wife or child."

The error assigned is, under the circumstances stated, in placing the burden upon the defendant to establish a just cause or excuse for abandoning his wife and child; the appellant contending that the burden was at all times upon the state to prove beyond a reasonable doubt, not only that the defendant had abandoned his family, but that he had done so without just cause or excuse. The statute is as follows (Criminal Code, A. D. 1912, § 697):

"Any able-bodied man 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, and, upon conviction thereof, shall be imprisoned for a term not exceeding one year, or be liable to a fine not exceeding two hundred dollars: Provided, that if he, either before or after conviction, shall give bond, with one or more sureties, approved by the clerk of the court, in the sum of not less than $300, conditioned upon his supporting and maintaining his said wife or said minor unmarried child or children, he shall not be imprisoned or the fine imposed until the condition of said bond is broken."

The defendant offered no evidence tending to establish a just cause or excuse for the alleged abandonment. The state made out a prima facie case against the defendant upon proof that he was an able-bodied man, and that he had abandoned or failed to supply the actual necessaries of life to his wife or minor unmarried child, dependent upon him. If such abandonment or failure was under circumstances establishing a just cause or excuse therefor, it was incumbent upon the defendant to make it appear by the preponderance of the evidence.

The case of State v. Barden, 64 S. C. 206, 41 S. E. 959, is conclusive upon the proposition. In that case the defendant was indicted for a violation of section 277 of the Criminal Code, now section 446, disposing of property under lien. The statute contains the following clause, as much an...