State v. Lynch

• Decision Date: 28 February 1936
• Docket Number: 14243.
• Parties: STATE v. LYNCH.
• Court: South Carolina Supreme Court

184 S.E. 153

180 S.C. 11

STATE v. LYNCH.

No. 14243.

Supreme Court of South Carolina

February 28, 1936

Appeal from General Sessions Circuit Court of Florence County; A. L Gaston, Judge.

W. S Lynch was convicted of abandoning and failing to supply necessaries to his dependent wife, and he appeals.

Affirmed.

McEachin & Townsend, of Florence, for appellant.

Lloyd Ford, of Conway, and A. L. Hardee and Hugh L. Willcox, both of Florence, for the State.

BONHAM Justice.

At the fall term of the court of general sessions for Florence county for the year 1935, W. S. Lynch was tried on an indictment which charged that: "W. S. Lynch being an able-bodied man and capable of earning a livelihood, did without just cause and excuse, abandon and fail to supply the actual necessaries of life to his wife, Essie B. Lynch dependent upon him."

He was convicted and sentenced by Judge Gaston, and appeals upon six exceptions, which appellant's counsel in their brief say: "Resolve themselves in to the following points: I. The trial Judge erred in refusing to direct a verdict for the defendant. II. The trial Judge erred in charging that certain inferences might be drawn from the testimony."

A motion for directed verdict is made upon the grounds that:

(1) It does not appear that defendant has failed to supply his wife with the actual necessities of life.

(2) That no other reasonable inference can be drawn from the testimony but that the defendant has at all times supplied his wife with a residence and has at all times been ready and willing to supply her with the necessities of life.

(3) That no other reasonable inference can be drawn from the testimony than that Mrs. Lynch voluntarily left Dr. Lynch's residence and maintained herself elsewhere, without making any demand upon the defendant for any necessaries of life.

(4) That under the statute there is no obligation on the defendant to furnish any particular residence for his wife, and, having furnished the one described in the testimony and having been ready at all times to furnish his wife at that residence with the necessaries of life, he has discharged his obligation under the law.

(5) That the testimony is not sufficient to support a verdict of guilty.

The motion for directed verdict was overruled.

The alleged errors in the charge will be taken up in due order.

It is needless to go into the painful and malodorous details of the occurrences which led to the wreck of a home and culminated in the present litigation. The appellant is a capable physician. In 1920 he moved with his family to Lake City and established a hospital in connection with his medical practice. At first patients were taken in the home, but later a separate building was erected for hospital purposes. Mrs. Lynch, in addition to doing the household work, helped in nursing patients and cooking food for them.

She was asked: "Q. In connection with the patients what did you do? A. I did everything in general, I helped operate. I helped nurse the patients. I answered calls at night, and served the meals and did the washing for the whole hospital."

She testified further that her relations with Dr. Lynch became estranged when he brought nurses in the house who should not have been associated with his children and family; when she objected to this, he moved into the hospital, left the house in which they were living.

In September 1923, Mrs. Lynch found her husband locked in his room at night with a woman; an altercation ensued; Mrs. Lynch demanded that the woman leave; she did not. Mrs. Lynch did not stay in the house that night. She testified that Dr. Lynch's attitude to his family was very cold; he was not on friendly terms with them, did not speak to his wife or children.

The prosecuting witness testified that she had nowhere to go, no place to live, except in the house where she was; that, after Dr. Lynch took up his abode at the hospital, he had arranged a credit account for the home of $50 per month at a store; that her health was bad; that she suffered from an incurable disease, which necessitated expensive treatment in Baltimore, all of which was known to the appellant. In October, 1925, the court granted to Mrs. Lynch alimony in the sum of $150 per month. Assuming that the alimony would be paid, she testifies that she felt that she should not longer remain in the home and left it. When the alimony was not paid, she sought to collect it by legal process, whereupon Dr. Lynch resisted it by legal process and put his property beyond her reach. Lynch v. Lynch, 161 S.C. 170, 159 S.E. 26, 80 A.L.R. 997.

The following appears in the record folios 31, 32:

"Q. Has Dr. Lynch furnished any of the actual necessaries of life since that date? A. No.

Q. What have you done in an effort to make a living for yourself? A. At first I was in no physical condition to do anything.

I went to some relatives at Kingstree. They took me in and clothed me and gave me food. Then when I was able to work in a store for one of my relatives in Kingstree one tobacco season, then I worked in Lake City in a store during a tobacco season. Since then I have been covering comforts and doing any work that I could get to do-worked in a tea room. Now I am on relief. I get $2.40 when I work 20 hours a week. Sometimes I get work every week and sometimes I don't. That is the nature of the work I have been doing. I nursed a couple of cases."

As against this proof of infidelity and of cruel and brutal treatment, of absenting himself from home, of refusing to pay the alimony adjudged against him, the appellant seeks to defend himself by saying that the wife could have remained in the house as long as she wished, and the puerile plea that since she left the house she has not asked of him any support or maintenance, and all this in the face of the fact that the record shows that, when his wife sought by means of legal process to collect the alimony, he put his own property beyond the reach of the law, and procured a legal adjudication that he was not the owner of the home property, that it was the property of his son, who lives there now with his wife, and where Mrs. Lynch has at intervals returned as a visitor to her son and his family. It further appears that, when she brought suit for alimony, the pitiful provision of $50 per month ceased. He admitted on cross-examination that he had not contributed one cent to her support in ten years.

The presiding judge refused to admit the proof of other acts of infidelity.

The evidence in the case brings it squarely within the rule laid down by this court.

In the case of State v. Bagwell, 125 S.C. 401, 118 S.E. 767, 768, it appears that the wife was taken by the husband to live at the home of his mother; that the wife left this home because the mother-in-law subjected her, in the presence of her husband, to foul and abusive language and treatment. On appeal, this court said:

"Appellant's legal position is that the wife forfeited the right to the husband's marital care and support by leaving and remaining away from the home he had provided for her. His contentions are that the husband has the right to determine the marital abode; that the wife has no right to leave the abode so fixed except for conduct on the part of the husband which amounts to saevitia (Hair v. Hair, 10 Rich. Eq. [163] 173; Wise v. Wise, 60 S.C. [426] 442, 38 S.E. 794); that subjecting the wife to mere insulting and abusive words of a mother-in-law may not be held to constitute such legal cruelty as will justify the wife in leaving the marital abode chosen by her husband; and that under the facts of the case at bar, for the husband's failure to support his wife and child, there was as a matter of law 'just cause or excuse.' * * *

But in the case at bar the abusive...