Stedman v. State
| Decision Date | 15 October 1920 |
| Citation | 80 Fla. 547,86 So. 428 |
| Parties | STEDMAN v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Alachua County; J. T. Wills, Judge.
Perry Stedman was convicted of nonsupport of a child, and he brings error.
Reversed.
Syllabus by the Court
Statute as to desertion and nonsupport of wife and children construed. The effect of chapter 6483, Acts of 1913, Laws of Florida (section 3569, Florida Comp. Laws 1914), is to make the act of unlawful desertion by a husband and father of his wife and child, or children, or by a husband of his wife, or by a father of his child or children, a crime. The same is true with respect to withholding from them, or any one or more of them, the means of support. If he unlawfully withholds from them, or any one or more of them, the means of support, his act is a crime. The unlawful desertion by him of any one or more of them, or the unlawful withholding by him of the means of support from any one or more of them, renders him amenable to the penalties prescribed by the statute, the only difference being that as to the wife his liability under the statute is contingent upon the nonexistence of such cause or causes for his act, or acts, as may be recognized as ground or grounds for divorce.
Desertion of wife and withholding of support from wife and children held indictable as in one count. While either the unlawful desertion or the unlawful withholding the means of support by a husband from his wife may be a distinct act from the desertion or withholding of the means of support by a father from his child or children, and each or either of such acts may be indictable and punishable as separate offenses under the statute, yet when such desertion or withholding of means of support from the wife and child or children is by the same person at the same time, such conduct may, under the statute be regarded as constituting one offense. Where this is the case, there can be no valid objection to an indictment charging the commission of such offense in a single court only, and a verdict on such indictment, finding defendant guilty as to less than the whole number named in the indictment, will not operate as an acquittal generally of the defendant.
When distinct acts indictable as distinct crimes may be coupled in one count as one offense stated. When a statute makes either of two or more distinct acts, connected with the same general offense, and subject to the same punishment, indictable as distinct crimes, they may, when committed by the same person at the same time, be coupled in one count, and constitute but one offense.
Issue of duplicity must be raised by demurrer or motion to quash before verdict rendered. It is settled by the great weight of authority that where an information or indictment is complained of on the ground of duplicity, the defendant must make the assault thereon by demurrer or by motion to quash before verdict rendered, and that he cannot assail it for duplicity by a motion in arrest of judgment. If he delays until after verdict rendered to raise the issue of duplicity in the indictment, he will be held to have waived such issue.
Statutes punishing abandonment of neglect of husband to support wife must be strictly construed. At Common law abandonment by or neglect of a husband to support his wife was not a criminal offense. Statutes, therefore, making such acts indictable and punishable as a crime, must be strictly construed.
'Withholding means of support' presupposes ability to support, and need thereof. Withholding the means of support means something more than failure to support or nonsupport. It presupposes the existence or the ability to obtain the means of support by the accused, and need by the alleged dependent or dependents from whom support is withheld. That which has no existence, actual or potential, cannot be withheld neither can that be withheld which is already possessed.
Statutes punishing desertion and nonsupport held not substitutes for statutes affording civil remedies. Statutes such as that under consideration are not substitutes for statutes affording civil remedies in such cases.
Verdict must be responsive to charge, and find everything necessary to rendition of judgment. A verdict must be responsive to the charge, and find everything that is necessary to enable the court to render judgment.
Verdict under indictment for withholding means of support from wife and child held not responsive. Under an indictment for 'withholding the means of support' from wife and child by a husband and father, a verdict of 'guilty of nonsupport of the child' is insufficient, as not responsive to the indictment.
W. S. Broome, of Gainesville, for plaintiff in error.
Van C. Swearinger, Atty. Gen., and D. Stuart Gillis, Asst. Atty. Gen., for the State.
Plaintiff in error, referred to herein as defendant, was charged in an indictment with unlawfully deserting his wife, Mandy Stedman, and unlawfully withholding from his said wife and his minor child, Lillie Mae Stedman, the means of support, there not then and there existing such cause or causes as are recognized as ground or grounds for divorce.
The indictment is in two counts. The desertion of the wife is charged in the first count, and the withholding of means of support from both the wife and child is charged in the second count.
Upon a trial of the case the following verdict was returned:
There was a motion for 'a verdict, finding the defendant not guilty notwithstanding the verdict of the jury finding the defendant guilty,' a motion in arrest of judgment, and a motion for a new trial, all of which were denied.
Sentence was imposed, and from this judgment defendant took writ of error.
By the several motions enumerated it is urged that the effect of the verdict was to acquit the defendant of the offense charged in the first count of the indictment, namely, the desertion of the wife. This, of course, is true. But it is further contended that conviction of the defendant under the second count as to the child only, and the acquittal as to the wife, operate as an acquittal of the defendant generally under this count, his theory being that, inasmuch as he is charged with withholding the means of support from his wife and child, there must be a conviction as to both or an acquittal as to both, and that an acquittal as to one amounts in law to an acquittal generally.
The statute upon which the prosecution is based is chapter 6483, Acts of 1913, Laws of Florida, Florida Compiled Laws, § 3569. The portion of this statute pertinent here is as follows:
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State v. Laundy
...and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction." In Stedman v. State (Fla.) 86 So. 428, the alleged that the defendant unlawfully deserted his wife and unlawfully withheld from his wife and his minor child means of support......
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...v. State, (Fla.) 80 So. 183; People v. Lee, 86 N.E. 573; State v. Griffin, 212 S.W. 876; State v. Stephanus, 99 P. 428 (Ore.); Stedman v. State, 86 So. 428; State v. (La.) 86 So. 552; Mai v. People, (Ill.) 79 N.E. 633; Donovan v. People, (Ill.) 74 N.E. 772; Commonwealth v. Call, (Mass.) 32 ......
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...of, or the ability to obtain, the means of support by the husband. He must have the means or the capacity to obtain them. Stedman v. State, 80 Fla. 547, 86 So. 428; Commonwealth ex rel. Wieczorkowski v. Wieczorkowski, 155 Pa.Super. 517, 38 A.2d 347, supra. In the latter case, the Court said......
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