State v. English

June 30, 1915. The opinion of the Court was delivered by The defendant was tried and convicted for a violation of section 697 of the Criminal Code of 1912, the law which makes it a misdemeanor for a husband to abandon his wife and to fail to support her without just cause. The appeal is from a judgment of imprisonment entered upon the verdict.

There are five exceptions; the second is split into five, and the third is split into four, alleged errors. But the appellant's counsel concedes in his argument that the case presents really only four issues, and he has stated them thus, he contends: (1) That the statute in the case is in violation of section 24, article I of the Constitution of 1895; (2) that the marriage was illegal because had under the provisions of section 389 of the Criminal Code of 1912; (3) that the wife was admittedly not dependent upon her husband for support and that circumstance bars the prosecution; (4) that the husband had "just cause or excuse" to abandon and fail to support his wife, because, before her marriage to him, and without his knowledge thereof until after marriage with him, she had been guilty of gross immorality with other men.

History: The prosecutrix was married to the defendant in the latter part of 1911 when she was 17 years old. The marriage resulted under the proviso of section 389 of the Criminal Code; that which permits a seducer to escape the penalty of his wrong by marring his victim. The defendant abandoned his wife in the early months of 1912, and has admittedly done nothing since then towards her support. She gave birth to three children — one in 1911, one in 1913, and one in 1914, all now dead, and all by the defendant, so she swears. The defendant did not deny the paternity of the first child, but did, by necessary inference, deny that of the others.

It was admitted at the trial on Circuit, that the prosecutrix and the defendant had been married, and that the defendant had abandoned her and failed to supply her with the necessaries of life. The excuse for his conduct is that he had just cause to abandon his wife; that the marriage is of no force, because contracted under compulsion; that the statute creating the offense is against the fundamental law; that the wife is not dependent upon him for support, because her father is able to do that for her. These defenses are but a restatement of the four exceptions. They will be considered in the order first hereinabove stated.

I. It is true the Constitution of 1895, and for that matter most others, prohibit imprisonment for debt except in cases of fraud. From that fundamental it is argued: (1) That defendant made a contract of marriage with the woman; (2) that his failure to support her constituted a breach of the contract; and (3) that for such breach the legislature cannot penalize the defendant by imprisonment. The argument is not sound; the conclusion is too general for the limited character of the premises.

It is true marriage has been termed by our Courts a civil contract, but it has not been confined to that definition. Issues depend upon it, and results spring out of it which do not follow upon the performance or the breach of other contracts. A relationship is not much simplified by calling it a contract, for thereout may arise multitudinous and different rights.

Coming now to the minor premise of the argument: It is true one of the many obligations of the marriage contract is that resting on the husband to support the wife, however poorly that obligation may in fact be sometimes performed. The implied contract to support is incident to the marriage relation. But the parties to the marriage contract are not alone interested in the performance of the implied obligation to support. All those who constitute organized society have a direct interest in that event. 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. These 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.

The case is likened to the criminal statute against bastardy. There it was held:

"A fine imposed for the violation of a statute is not a `debt,' within the constitutional provision forbidding imprisonment for debt, * * * the term `debt' is to be understood as an obligation arising otherwise than from the sentence of a Court for the breach of * * * (a public duty)."State v. Brewer, 38 S.C. 268, 269, 16 S.E. 1001, 1003, 19 L.R.A. 362, 37 Am. St. Rep. 752.

This case does not fall within the strictures of the Exparte Hollman, 79 S.C. 13, 60 S.E. 19, 21 L.R.A. (N.S.) 242, 14 Ann. Cas. 1105.

In our opinion the statute is not within the constitutional prohibition.

II. A sufficient answer to the second contention, that the marriage is void because contracted under duress, is that the defendant would thereby completely evade two statutes, that one now under review, and section 389 which penalizes seduction under promise of marriage. The defendant escaped imprisonment for a violation of that statute by marrying his victim, an act made permissible by the proviso to that statute; he now seeks to escape imprisonment for a violation of section 697, because, in effect, he had aforetime violated another law. There would be some manifestation of the spirit of justice, if the defendant should now, after ignoring his marriage vows, submit himself to be punished for the first wrong he did; but he does not do that. The statute penalizing seduction under promise of marriage has not been directly assailed; but it may be sustained under like principles as the statute now under review. The second exception is, therefore, without merit.

III. The third exception is faulty on its face. To sustain it would be to acquit those wrongdoers who may have married women with parents able to support them, and to convict those wrongdoers who may have married women whose parents are poor.

IV. The last exception involves a construction of those words of the statute which "excuses" the husband to abandon his wife, and the rulings and charge of the Circuit Court thereabout.

The Court was requested by the defendant to charge, and did so charge, that "what is just cause or excuse is a question for the jury." The defendant tendered one witness to prove that the wife after her marriage told the husband that she had before marriage been guilty of incest. The testimony was received. The defendant tendered a witness (Oscar Odom) to prove that before the marriage he and the prosecutrix had been guilty of immoral conduct, unknown to the defendant before marriage. That testimony was received. A witness (Bradford Quick) was tendered to prove like conduct by the prosecutrix with him. The Court ruled "if it is after marriage it is competent; if it was prior to marriage it is incompetent." The witness did not fix the time, and he did not answer. The objection, therefore, that Quick's testimony was rejected cannot avail, because Odom's testimony of like character was received, and so was the testimony about incest. Nor can the defendant object that the Court left it to the jury to ascertain what amounted to just cause; the defendant suggested that view to the Court.

The wife denied the testimony about incest and the testimony of Odom. The issue thereabout was for the jury, and if the jury concluded that the wife swore truly, then the defendant was left without just cause or excuse for his abandonment of her.

In any view of the cause the judgment of the Circuit Court must be affirmed; and it is so ordered.