State v. Redmond

• Decision Date: 08 June 1929
• Docket Number: 12674.
• Parties: STATE v. REDMOND.
• Court: South Carolina Supreme Court

148 S.E. 474

150 S.C. 452

STATE v. REDMOND.

No. 12674.

Supreme Court of South Carolina

June 8, 1929

Appeal from General Sessions Circuit Court of Lexington County; T S. Sease, Judge.

Lee Redmond was convicted of willfully abandoning and failing to support his wife and minor child, and he appeals. Affirmed.

Timmerman & Graham, of Lexington, for appellant.

T. C Callison, Sol., of Lexington, for the State.

COTHRAN J.

Indictment charging the defendant with willfully abandoning and failing to support his wife and minor child. Trial before his honor Judge Sease, and a jury; verdict "guilty"; sentence, 12 months' imprisonment, with the proviso, in conformity with the statute, for the execution of a bond in the sum of $600, for the payment to the wife, for the support of herself and child, of the sum of $20 per month beginning October 1, 1928.

The defendant contends that the conviction should be reversed upon the several grounds which will be taken up in order.

I. The offense (or offenses) created by the statute consists in the failure to supply the necessaries of life to the wife or to the minor unmarried child or children dependent upon the husband and father. The indictment charges that the defendant failed to supply the necessaries of life to the wife and minor child. The circuit judge, in his charge, permitted a conviction of the double charge upon proof that the defendant failed in his duty to either the wife or the minor child.

We think that the appellant has misapprehended the instructions given to the jury by the circuit judge. What he charged was this: "The charge against the defendant, as contained in this indictment, really charges two offenses in the same count, that is that he wilfully and unlawfully abandoned, without just cause or excuse, and failed to supply the actual necessaries of life to this wife, that is one charge; and he is also charged in the same language of wilfully and unlawfully abandoning, without just cause or excuse and failing to supply the actual necessaries of life to a minor child who is dependent upon him. There are really two charges jumbled in one count of the indictment. Therefore it becomes necessary in the consideration of the case submitted to you, if you find that he is not guilty as charged in failing to support his wife, but if you should find that he is guilty of failing to support his child, under the law, you would say so. In other words, if you find him guilty of both charges in the indictment, the one word, 'guilty' will be sufficient. If the State has failed to prove him guilty beyond a reasonable doubt of any charge in the indictment, the form of your verdict will be 'not guilty' which will cover both branches of the case. In other words if you find that he is guilty in failing to support his child you will say so; and if you find that he is guilty of the charge of failing to support his wife, let your verdict speak what you mean to find."

If, as the circuit judge held, the indictment contained two separate and distinct offenses, the defendant should have raised the objection by an appropriate motion to have them separately stated. Not having done so he must be held to have waived the objection.

Section 90 of the Code of Criminal Procedure 1922 provides: "Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer, or on motion to quash such indictment before the jury shall be sworn, and not afterwards."

The charge is not amenable to the objection urged, and, if it should be so considered, the objection has been waived.

The jury having returned a verdict of "guilty," it can be interpreted only as having found that the defendant had failed in his duty to both the wife and the child as charged in the indictment. They were given the opportunity to exculpate him as to one or the other and declined to do so.

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