State v. Nesmith

• Decision Date: 13 December 1937
• Docket Number: 14584.
• Citation: 194 S.E. 160,185 S.C. 341
• Parties: STATE v. NESMITH.
• Court: South Carolina Supreme Court

194 S.E. 160

185 S.C. 341

STATE v. NESMITH.

No. 14584.

Supreme Court of South Carolina

December 13, 1937

Appeal from General Sessions Circuit Court of Florence County; E. C Dennis, Judge.

Cecil J. Nesmith was convicted for nonsupport of his wife and minor child, and he appeals.

Affirmed.

A. C Hinds, of Kingstree, and G. Badger Baker, of Florence, for appellant.

C. T McDonald, of Florence, and G. Lloyd Ford, of Conway, for the State.

STABLER Chief Justice.

On October 12, 1936, the defendant Nesmith was indicted in the court of general sessions for Florence county for nonsupport of his wife and minor child, in violation of section 1123 of the Code of 1932, which provides that: "Any able-bodied man or a man capable of earning or making a livelihood 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," etc. At the proper time before trial, the defendant moved for a change of venue to Williamsburg county, but his motion was refused. He was found guilty as charged, and was sentenced in accordance with the provisions of the statute.

The appeal presents four questions for decision: (1) Should the court have granted the motion for a change of venue? (2) Was there error in the admission of testimony with regard to defendant's second marriage? (3) Did the trial judge indicate to the jury, in his charge or otherwise, that he had formed the opinion that the defendant was guilty? (4) Was the verdict "capricious, unjust and contrary to the weight of the testimony?" These we will consider in the order named.

First. The motion for the change of venue was made "on the ground that the defendant was a resident of Williamsburg County and that the statute involved is, in effect, a civil statute, and trials thereunder should properly be regulated by the statutes determining the place of trial in civil actions." In argument, counsel for the appellant say: "The statute in question is remedial in purpose and its real object is to secure to wife and child the financial and other support of the husband. By its very terms it provides a means of securing this remedy in the nature of any other purely civil remedy. The penalty provided is, after all a mere safeguard against the violation of the provisions of the act and against the failure to comply with the terms of such requirement as may be made by the Court as to security. It, therefore, partakes decidedly more of the nature of a civil statute and a civil remedy and trials thereunder should be and are governed by the provisions of the code with reference to the place of trial of civil actions"- citing State v. Bagwell, 125 S.C. 401, 118 S.E. 767, as supporting this view.

We do not think this position can be sustained. It is true, as said in State v. Bagwell, supra, that the statute is intended to supplement other means and remedies for enforcing the moral and social duty of the husband to support his wife, and to that extent is remedial in purpose; but it is also there pointed out that it "is designed in part to redress the State's or society's grievance flowing from a breach of the husband's duty in that regard"-citing State v. English, 101 S.C. 304, 85 S.E. 721, 722, L.R.A.1915F, 977. In the English Case, the court, speaking through Mr. Justice Gage, pointed out that the parties to the marriage contract are not alone interested in the performance of the implied obligation of the husband to support his wife, but that all who constitute organized society have a direct interest in the event. The court then said:

"The state has always busied itself about the domestic relations; about marriage and who may contract it, and how women may be protected from the force and stratagem of men; about children, their education, and their employment; about morality and how it shall be preserved in the family. Those forces which operate to impair the integrity of the family will finally sap the foundations of the state. Society is interested that the family shall be maintained first of all by meat and bread. The state may command that in behalf of all its members; it has commanded it by the statute under review. 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. [Italics added]

The case is likened to the criminal statute against bastardy"-citing State v. Brewer, 38 S.C. 263, 16 S.E. 1001, 1002, 19 L.R.A. 362, 37 Am.St.Rep. 752.

In the Brewer case it was contended that the proceedings in a case of bastardy are civil rather than criminal in their nature, and that the amount which the defendant, upon conviction, is required to pay is a debt for the nonpayment of which a party cannot be imprisoned without violating the Constitution. Article 1, § 24. Mr. Chief Justice McIver, speaking for the court, after pointing out that the question presented must be determined by the provisions of the Constitution and statutes of the state said: "So considered, it is clear to our minds that such proceedings are of a criminal and not of a civil nature. By section 1 of article 4, of the constitution of this state, the court of general sessions is vested with criminal jurisdiction only; and as our statutes (section 1582 of the General Statutes) expressly require that the issue in such cases shall be tried in that court, it would seem to be conclusive that the legislature intended to make the offense of bastardy a criminal offense; and, as a further indication of such intention, the proceeding is commenced, just like other criminal cases, by the issue of a warrant to apprehend the party charged (section 1579); and the use of the words 'accused,' 'acquitted,' and 'convicted,' in section 1582, followed by the provision in the same section that upon conviction the accused shall be liable to execution as are defendants convicted of misdemeanors, points to the same conclusion. Accordingly, the unbroken practice has always been to treat a charge of bastardy as a criminal offense, for which the accused is indicted and tried in the court of sessions, just as in the case of other misdemeanors. Hence, whatever may be the view taken in other states, where they may have different statutes and different rules of practice, we cannot doubt that in this state a charge of bastardy must be, as it has always been, regarded as a criminal proceeding, instituted, not for the purpose of recovering or enforcing the payment of a debt, but for the purpose of subjecting the party charged to the penalty imposed by statute for a violation of the law."

When what is said in these cases is considered together, it seems clear that the proceedings had in a case of abandonment or nonsupport, declared by the statute to be a misdemeanor, are criminal rather than civil in nature. In other words, the violation of the statute is a criminal offense, "for which the accused is indicted and tried in the Court of Sessions, just as in the case of other misdemeanors." The trial judge, therefore, properly refused to grant the motion for a change of venue on this ground.

In 8 R.C.L. 310, we find: "Generally speaking, it is a fundamental rule of criminal procedure that one who commits a crime is answerable therefor only in the jurisdiction where the crime is committed, and in all criminal prosecutions, in the absence of statutory provision to the contrary, venue must be laid as in the county of the offense, and it must be proved as laid. Such an offense as desertion or failure to provide for a wife or children is however negative, the omission of a duty, and therefore venue depends on the question where the omission to perform that duty occurs."

See State v. McCoy, 98 S.C. 133, 82 S.E. 280; State v. Stone, 111 S.C. 496, 98 S.E. 333; State v. Peeples, 112 S.C. 310, 99 S.E. 813; State v. Dvoracek, 140 Iowa 266, 118 N.W. 399; State v. Shuey, 101 Mo.App. 438, 74 S.W. 369; State v. Gillmore, 88 Kan. 835, 129 P. 1123, 47 L.R.A. N.S., 217.

In the case at bar, there was testimony to the effect that the prosecutrix and her husband went to Florence, S. C., about March, 1930, and while there lived with her brother-in-law and sister, Mr. and Mrs. Ratley; that on December 19, 1930, a child was born to them, the hospital expenses being paid by Ratley; that on February 7, 1931, Mrs. Nesmith, pursuant to a mutual understanding between her and her husband, went on a visit to her mother at Hamlet, N.C. Mrs. Nesmith testified "I was sent home with the intention of coming back, and he never did come for me." She further stated the total contributions made by her husband to her and the child's support after February 7, 1931, was not more than $15. D. J. Ratley testified that after Mrs. Nesmith went to North Carolina, the defendant, under an agreement with the witness, took over Ratley's fruit stand; the arrangement being that Ratley was to get in payment of defendant's board $5 per week, the defendant to get $5 for himself, and $5 to be sent to Mrs. Nesmith at Hamlet, and that all profits above $15 were to be divided equally between the witness and the defendant; that at the time he turned the business over to Nesmith, the witness was making from $20 to $30 profit per week, and that when he visited the...