State v. McPherson

• Court: Washington Supreme Court
• Writing for the Court: GOSE, J.
• Citation: State v. McPherson, 72 Wash. 371, 130 P. 481 (Wash. 1913)
• Decision Date: 06 March 1913
• Parties: STATE v. McPHERSON.

130 P. 481

72 Wash. 371

STATE v. McPHERSON.

Supreme Court of Washington

March 6, 1913

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Gordon McPherson was convicted of unlawful desertion and nonsupport of his wife, and he appeals. Reversed.

Geo McKay, of Seattle, for appellant.

John F Murphy and Thos. J. L. Kennedy, both of Seattle, for the State.

GOSE J.

The charge against the defendant is that on the 7th day of February, 1912, he willfully and without lawful excuse deserted, and willfully neglected and refused to provide for the support and maintenance of, Louise McPherson, his wife, she then being in necessitous circumstances. The verdict was 'guilty as charged.' A judgment was thereupon entered, whereby it was ordered and adjudged that he be punished 'by confinement in the county jail of the county of King' for the term of 12 months, and that execution of the sentence be stayed on condition that he file a bond, in the sum of $1,000 with sureties to be approved by the court for the payment of $5 weekly to and for the benefit of his wife. The defendant has appealed.

His first contention is that his demurrer to the information should have been sustained because of the failure to allege a continuing neglect. The information follows the language of the statute, and is not vulnerable to a demurrer. Rem. & Bal. Code, § 2444; 21 Cyc. 1613, 1614. The statute makes it a crime for the husband willfully and without lawful excuse to desert, or to willfully neglect or refuse to provide for the support and maintenance of, his wife, if she is in necessitous circumstances. This is covered by the information.

It is further contended that there is no evidence that the wife was in necessitous circumstances. The facts pertinent to this inquiry are that the appellant was married to his wife on the 10th day of December, 1911; that he was 16 years of age in the month of July preceding; that she was 17 years of age in the month of October preceding; that they lived with the wife's mother for a short time, and thereafter lived in apartments until the 11th day of February, 1912, when she returned to her mother's home at his command, and that thereafter she lived with her mother and stepfather, and he lived with his parents. She testified that she had been pregnant five or six months at the time of the separation. When they left their apartments, they had about three days' provisions in the house. The wife testified that she had no money, and her mother said that the wife had no means to make the payments upon the furniture, which were $10 per month. Upon these facts the jury was warranted in finding that the wife was in necessitous circumstances.

It is argued that the evidence does not show a willful neglect or refusal to provide for the support and maintenance of the wife. The appellant testified that he was earning $9 per week as a clerk in a department store at the time of the separation; that his salary was not sufficient to meet the necessary family expenses; that his wife promised to do outside work, and did not; and that he was driven to the extremity of sending her to her mother. The wife and mother testified that the appellant represented to them that his salary was $15 per week, and the mother said that he told her that he was expecting a raise in his salary. The wife told him that she would get a lodging house and keep roomers, and that her mother would supply such furniture as they needed. To this offer he demurred. Between the date of the separation and the trial three months later the appellant contributed nothing toward the support of his wife. His confession of his inability to support his wife is not to his credit. It shows a moral cowardice that few young men would confess. The prosecuting attorney very pertinently asked him if he was the only married clerk in the city.

The court properly instructed the jury that it is the duty of the husband 'to do the best he can' to support and maintain his wife 'in the manner suitable to his station and circumstances.' He contributed nothing at all to his wife's support, and the jury evidently concluded that he had not done the best he could.

The contention that the evidence of the wife's pregnancy was inadmissible is without merit. It was a circumstance tending to prove her necessitous condition.

It is strenuously contended that the statute (Rem. & Bal. Code, § 2444; Laws 1909, p. 946, § 192) does not apply to a husband under 18 years of age, but that he can be punished only as a delinquent child, as defined by Laws 1909, p. 668, § 1 (Rem. & Bal. Code, §§ 1987 to 2004), and in the manner therein provided. Section 12 of this act provides that a delinquent child may be tried under the provisions of the Criminal Code.

The argument that the abandonment statute under which the appellant was convicted does not apply to a voidable marriage is inherently unsound. The appellant was married by a regularly ordained minister, upon a license issued upon an affidavit of a third party, which falsely stated that the appellant was over 21 years of age. He was married without the knowledge or consent of either of his parents, both of whom were living. Our statute (Rem. & Bal. Code, § 7150) has established the age of matrimonial consent at 21 years in males and 18 years in females. It is provided in section 7164 that a license may be granted if consented to in writing by the father, mother, or legal guardian of the minor, where the female is under the age of 18 years and over the age of 15 years and where the male is under the age of 21 years. Our statute (Rem. & Bal. Code § 7162) provides that, where either party to a marriage shall be incapable of consenting for want of legal age, the marriage is voidable, but only at the suit of the party laboring under the disability. It follows, we think, that it is the duty of the husband, even though the marriage is voidable, to give his wife such support as his earning ability and circumstances in life will reasonably justify, until there has been a decree of annulment entered in a court of competent jurisdiction. This conclusion is within the principle announced in Re Hollopeter, 52 Wash. 41, 100 P. 159, 21 L. R. A. (N. S.) 847, 132 Am. St Rep. 952, 17 Ann. Cas. 91; Hunt v. Hunt, 23 Okl. 490, 100 P. 541, 22 L. R. A. (N. S.) 1202; Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 5 L. R. A. (N. S.) 767, 14 Ann. Cas. 883; Bostick v. State, 1 Ala. App. 255, 55 So. 260; State v. Lowell, 78 Minn. 166, 80 N.W. 877, 46 L. R. A. 440, 79 Am. St. Rep. 358; Town, etc., v. Town, etc., 50 Vt. 62. This view is based upon the principle that, under the statute, the marriage is not void, but merely voidable, and, until legally annulled, is valid for all civil purposes. In the Hollopeter Case we sai...