State v. Latham

• Decision Date: 11 October 1916
• Citation: 188 S.W. 534,136 Tenn. 30
• Parties: STATE v. LATHAM.
• Court: Tennessee Supreme Court

188 S.W. 534

136 Tenn. 30

STATE v. LATHAM.

Supreme Court of Tennessee.

October 11, 1916

Appeal from Circuit Court, Lauderdale County; S. J. Everett, Judge.

Sam Latham was prosecuted for neglecting and failing to provide for his wife, and from a judgment quashing the indictment the State appeals. Reversed and remanded for trial.

Wm. H Swiggart, Jr., Asst. Atty. Gen., and Julian G. Straus, of Memphis, for the State.

Craig & Bullock, of Ripley, for appellee.

WILLIAMS J.

The state has appealed from a judgment of the circuit court quashing an indictment of the defendant in error, which indictment is, omitting formal parts, as follows:

"That Sam Latham * * * unlawfully, willfully and without good cause, did neglect and fail to provide for his wife, Viola Latham, according to his means, she being then and there the lawful wife of him, the said Sam Latham."

The motion to quash challenged the constitutionality of the act on which the indictment was based (Act 1915, c. 125); it being urged: (a) That the act provides imprisonment for debt; (b) denies in a criminal case a trial by jury; (c) deprives the accused of his property and liberty without due process of law; and (d) that it was not competent for the Legislature to provide for a crime, the penalty for the commission of which is not made payable to the state for the benefit of the public at large.

Section 1 of the act makes it a misdemeanor for any husband to willfully and without good cause neglect or fail to provide for his wife according to his means, or leave her destitute, or in danger of becoming a public charge.

Section 2 provides that on complaint being made to any judge or juvenile court, the judge must issue a warrant for arrest; and by section 3, on a plea of guilty the judge may require the accused to execute a bond to the effect that he will pay, in installments for the period of one year, a reasonable sum, to be specified by the court, for the support of his wife, after an examination to determine the defendant's ability to pay, and the necessities of the wife; and upon the giving of the undertaking the defendant must be discharged. If the defendant pleads not guilty, he is to be bound over for the action of the grand jury.

By section 4, after a binding over, and his plea of guilt, or after trial finding guilt, it is made the duty of the criminal judge to determine and fix, in like manner and with like effect, the bond. In default of the execution of the bond, the court must sentence defendant to the workhouse.

Section 5 provides that at any time during confinement defendant may be released upon giving bond for the amount he shall be adjudged to pay for the benefit of his wife.

Section 6 provides for the enforcement of the bond on forfeiture, and other details that need not be outlined.

The first ground of attack on the statute is that it provides for imprisonment of the husband for debt, in contravention of article 1, § 18, of the Constitution, which provides that "the Legislature shall pass no law authorizing imprisonment for debt in civil cases." It is urged that the statute makes it a misdemeanor punishable by imprisonment for a man not to meet his obligation to support his wife, which obligation is civil in nature, enforceable in a civil suit by one who furnishes necessities to the wife. The act, however, does not concern the liability of the husband to third persons, but his relationship to the wife.

The obligation of the husband in that regard does not arise out of contract, expressed or implied, so as to have the status of a debt within the meaning of the Constitution. The overwhelming weight of authority is to the effect that the word "debt" used in the constitutional provision covers only such obligations as arise between debtor and creditor, by express contract or by the law's implication. Adams v. Adams, 80 N. J. Eq. 175, 83 A. 190, Ann. Cas. 1913E, 1083, Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L. R. A. (N. S.) 1140, and note, and authorities cited in annotations of the cases of Carr v. State, 106 Ala. 35, 17 So. 350, 34 L. R. A. 634, 636, 54 Am. St. Rep. 17, and State v. Prudential Coal Co., 130 Tenn. 275, 170 S.W. 56, L. R. A. 1915B, 646.

It has been specifically ruled that an imprisonment imposed on a husband for his failure to support his wife is not imprisonment for debt. The Supreme Court of South Carolina, in State v. English, 101 S.C. 304, 85 S.E. 721, L. R. A. 1915F, 977, said:

"The penalty for the breach of the command is imprisonment. But that is not for any 'debt' due by the husband to the wife; it is for the husband's failure to obey society's law, made for society's subsistence."

See, also, People v. Heise, 257 Ill. 443, 100 N.E. 1000.

What the husband owes the wife is not a debt, specific as to amount or definite as to maturity, but a duty to support, and the performance of this duty may be enforced by law, by the imposition of a penalty for default. This is all the statute undertakes to do.

It is argued that the statute under review discloses a purpose to make any money product of the proceeding payable to the benefit of the wife, and not to the state for the benefit of the people of the commonwealth. The case, on both of the above phases, finds a strong analogy in cases of bastardy where sums are adjudged to be paid by the father for the support of his bastard child, or imprisonment is imposed on...