State v. Jackson

• Decision Date: 11 October 1926
• Docket Number: 25459
• Citation: 143 Miss. 745,109 So. 724
• Court: Mississippi Supreme Court
• Parties: STATE v. JACKSON. [*]

109 So. 724

143 Miss. 745

STATE v. JACKSON. ^[*]

No. 25459

Supreme Court of Mississippi

October 11, 1926

(In Banc.)

1 PARDON. Statute denouncing wife desertion or nonsupport and providing for suspension of sentence held unconstitutional as invading pardoning power of governor (Laws 1924, chapter 155; Constitution 1890, section 124).

Chapter 155, Laws of 1924, is unconstitutional and void because it invades the pardoning power vested in the governor by section 124 of the Constitution of 1890.

2 STATUTES. Section of statute creating offense of abandonment of wife or nonsupport held inseparable from, invalid provision for suspension of sentence (Laws 1924, chapter 155 sections 1, 35; Constitution 1890, section 124).

Chapter 155 is a unified act, and the provisions thereof cannot be separated so that offense denounced in section 1 can be saved and the other provisions eliminated as unconstitutional. All the sections are necessary to carry out the legislative intention in enacting such act.

SMITH C. J., and COOK, and HOLDEN, JJ., dissenting.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

A. L. Jackson was indicted for deserting or willfully refusing to support his wife, and from a judgment sustaining a demurrer to the indictment the state appeals. Affirmed.

Judgment affirmed.

J. A. Lauderdale, Assistant Attorney-General, for the state.

A. L. Jackson, appellee, was indicted charged with wife desertion as defined by section 1, chapter 155, Laws of 1924. Counsel for Jackson filed a demurrer to the indictment, which demurrer was by the court sustained. The state has appealed from the judgment of the court sustaining the demurrer, thus raising the constitutionality vel non of this statute.

I. "Acts of the legislature are to be upheld by the courts unless it is plainly apparent that they conflict with the organic law after solving all doubts in favor of the validity of the law." U. of Miss. v. Waugh, 105 Miss. 627; Johnson v. Reeves, 112 Miss. 227; 6 R. C. L., pp. 89-90.

At common law the husband's neglect to support his wife, coupled with his abandonment or desertion of her, was not a criminal offense. Section 1, chapter 155, Laws of 1924, makes such neglect a crime, defines the constituent parts of the crime and fixes the punishment therefor. It must be conceded by all that this section taken alone is constitutional.

Section 2 of this act provides how prosecution under section 1 may be begun. This section merely restates what was and is the law with reference to felonies. It does not alter or change the common law or our statutes on this subject with reference to the prosecution of persons charged with the commission of a felony. It merely reaffirms the law as it was written before this section was enacted and in order to make it comply with the decisions of this court in State v. Sansome, 97 So. 753.

Section 3 provides that in the event a person is indicted for a violation of section 1 thereof and pleads guilty thereto or is convicted on said indictment, that the court may suspend the fine or imprisonment imposed, or any part thereof, provided the defendant enters into a bond conditioned that he shall provide for and support his wife for a period of two years. I think this section is constitutional and it will be argued more fully in this brief. However, even though it may be conceded that this section is unconstitutional, the appellee has no right to raise this question. It is optional with him whether or not the trial court suspends his sentence. This cannot be done without his express consent and agreement. He cannot even tacitly consent but he must do a positive and unequivocal act before he can receive the benefits provided for in this section. He must execute and file a good and solvent bond before the court is authorized to suspend his sentence. This provision is for the benefit of appellee and is not adverse to his rights and interests.

Even though this section is unconstitutional, it cannot operate to deprive appellee of his rights and cannot become effective as to him without his consent and agreement, and under the rule laid down in the case of M. & C. Ry. Co. v. State, 110 Miss. 304, he cannot complain.

Section 4 provides that in the event the defendant violates the conditions of his bond, his suspension of sentence may, in the discretion of the judge, be revoked. If a defendant obtains a suspended sentence, as provided for in section 3, then he cannot complain that his suspension is revoked because he violates the conditions of his agreement.

Section 124 of the state Constitution provides that the governor shall have power to grant reprieves and pardons, to remit fines, etc. The third ground for demurrer alleges that chapter 155, Laws of 1924, is in violation of this section. This contention is so far fetched that it needs no refutation. The right of the legislature to authorize and empower a trial court in its discretion to suspend a sentence imposed upon a defendant when he is adjudged guilty is universally recognized; and the principle is well settled in this state. This statute does not change the general law on the subject. It in no way abridges the right and power of the governor.

Shipman & Taylor, for appellee.

One ground for demurrer is that the said act is void, because it is an attempt to infringe upon the pardoning power of the governor, in whom is vested all power to grant pardons and reprieves in criminal cases, except as specifically mentioned.

This act in its provision for suspending sentence on conditions set forth therein was not seeking to grant the court the power which is said to be inherent in all courts of general jurisdiction in criminal cases to suspend sentences, but it makes it the duty of the court in cases arising under the act, upon compliance with the other provisions relative to making bond by the defendant, to suspend the sentence; and, further, provides that, in case of breach of the terms of the bond, the judge or the court shall order the defendant rearrested and required to perform the sentence imposed and suspended. This, we submit, is not authority to the court to exercise the discretion vested in every such court, but is a special law in furtherance of the scheme of the act, suspending the operation of the general law, and making what has always been heretofore the exercise of a sound discretion on the part of the court a requirement, should the defendant desire to avail himself of the right to make the bond; therefore, it is an infringement on the pardoning power as the same is vested solely in the governor of the state. Chapter 109, Laws of 1908, was declared void on this account.

The sole power to pardon is confided by the Constitution to the governor and cannot be delegated elsewhere by the legislature. By the same token the "sole power to grant reprieves" is vested by the same section of the Constitution and confided to the governor, and cannot be delegated elsewhere by the legislature. State v. Kirby, 96 Miss. 629, 51 So. 811. See, also, Ex parte McInnis, 54 So. 260.

ETHRIDGE, J. SMITH, C. J., dissenting.

OPINION

ETHRIDGE, J.

The appellee, Jackson, was indicted in the First district of Jones county, Miss., on a charge of violating chapter 155 of the Laws of 1924. The material part of the indictment reads as follows:

". . . Upon their oaths present that A. L. Jackson on the 1st day of September, 1924, in the county and district aforesaid did unlawfully, willfully, and feloniously, without just cause, desert or willfully neglect or refuse to provide for the support or maintenance of Mrs. A. L. Jackson, his wife, leaving her in destitute or necessitous circumstances, against the peace and dignity of the state of Mississippi."

The defendant demurred to the indictment on several grounds:

"That said chapter 155 of the Laws of 1924 is unconstitutional in this:

"(1) The said act is in contravention of section 159 of the said Constitution, in that it is an attempt to, and if carried into effect will, usurp the jurisdiction vested solely in the chancery courts of the said state by the said Constitution.

"(2) The said act is violative of section 87 of the said Constitution in that it attempts to suspend, by authority of the legislature, the provisions of a general law for the benefit of private individuals.

"(3) The said act is void because it is an attempt to, and if carried into effect will, infringe upon the pardoning power, vested in the governor of the state.

"And, finally, the said act is void for that the offense sought to be charged therein and thereby is indefinite, and does not specifically provide and define with reasonable certainty what does constitute 'without reasonable cause,' or what is not a just cause."

Section 1 of chapter 155 reads as follows:

"Be it enacted by the legislature of the state of Mississippi--That any husband who shall without just cause, desert or willfully neglect or refuse to provide for the support or maintenance of his wife, leaving her in destitute or necessitous circumstances; or any parent who shall desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction thereof, shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the penitentiary not exceeding two years or both, in the discretion of the court."

Section 3 of chapter 156 reads as follows:

"In case of an indictment, and at the trial on the entry of a plea of guilty or after conviction the court may in...