Land v. State , 71 Fla. 270 ( 1916 )

Cockrell, J.

The plaintiff in error was convicted of the statutory crime of unlawfully withholding support from his wife and infant child.

The only attack upon the indictment suggested in the brief is based upon the alleged invalidity of the statute by reason of a supposed defect in the title, and as to this it is admitted that this title was upheld by us in Welch v. State, 69 Fa. 21, 67 South. Rep. 224. Nothing is suggested to cause us to overrule that case.

It is argued that the testimony fails in proof that the husband withheld the means of support. He testified that he was eighteen years of age, and there is no proof that he possessed any property. There is evidence however that he supported his wife by his labors until he left her and went to live with and work for his father. Some support is found for this contention in the case of People v. Todd, 61 Mich. 234, 28 N. W. Rep. 79. The facts in that case are so meagre that we have difficulty in understanding the decision. The Michigan statute requires proof that the husband has “sufficient ability” to support the wife, and the case would appear to have been decided that marriage was not an emancipation and that the wages of a married minor son would despite the marriage, still go to the father. The Supreme Judicial Court of Massachusetts takes the opposite and we think the correct view, that the wife has the prior claim to the earnings. Commonwealth v. Graham, 157 Mass. 73, 31 N. E. Rep. 706, 16 L. R. A. 578, 34 Am. St. Rep. 255. The statute is aimed at delinquent husbands, and makes no distinction as to age. This plaintiff in error was permitted under the law to enjoy the privileges of the marital status, and he must be held to the responsibilities of the state belonging to that status.

Under the proviso of the statute a cause for divorce existing at the time of the desertion is made a defense, and under this proviso a witness was offered to prove the general reputation of the wife for chastity. We can find no authority for the admission of such testimony, and Washburn v. Washburn, 5 N. H. 195, holds such evidence clearly inadmissible. Some State courts hold that the one charged with adultery may put her reputation for chastity in evidence, just as in criminal cases the defendant may put in character evidence, but says Mr. Bishop in his book on Marriage, Divorce and Separation, section 1425, sustaining such ruling, it is in perfect accord with this doctrine to deny the complainant in a divorce suit the right to attack the defendant’s character through general reputation for lewdness and unchastity. There are a number of cases deciding that it is permissible to prove the character of a woman with whom a husband charged with adultery associates or visits, or the reputation of a house visited by the wife charged with this ground for divorce. In this class of cases the character offered is that of a third person, not a party to the cause, and it may be material as bearing upon the guilt or innocence of the party charged as showing the probable purpose of the association or visit. See 1 Wigmore’s Evidence, §68. The case of Sutton v. State, 124 Ga. 815, 53 S. E. Rep. 381, recognizes this distinction. To the same effect are Commonwealth v. Gray, 129 Mass. 474, 37 Am. Rep. 378, and State v. Eggleston, 45 Ore. 346, 77 Pac. Rep. 738.

The defendant offered also to prove what some one said several months after the separation. It is evident from the defendant’s own statement that this occurrence had nothing to do with the separation, which he attributes to the wife’s going into the nearby town with a man as to whom there is no suggestion of criminal intimacy, or any act constituting a'case for divorce.

We find no error of law, and we are entirely satisfied with the verdict rendered..

The judgment is affirmed.

Shackleford and Ellis, JJ., concur. Taylor, C. J., dissents. Whitfield, J., absent by reason of illness.