Boulo v. State

| Ala. | Jan 15, 1873

BECK, C. J.

— There was no error in overruling the motion to quash the indictment. The court was not bound to entertain said motion, but might put the defendant to his demurrer. We think, however, that the indictment is insufficient. It should have found the ability of the defendant to contribute to the support of his family, by his means, or, being an able-bodied person, by his industry.

The first and second charges asked by the defendant should have been given. Clearly, a man may refuse to live with his wife, and yet not be a vagrant within the meaning of the statute. Rev. Code, § 3630. So he may refuse to live with his wife, and also fail to contribute to her support, and yet not be liable to an indictment under said section. His failure to contribute to her support may be caused by his inability to do' so ; in which case he would be guilty of no one of the offences named in said section. The third charge, however, was properly' refused. Personal dislike is no legal cause for a man to refuse to live with his wife. The charges given by the court do not seem to have been excepted to; but ev'en if they had been, the defendant would have no reason to complain. They are quite as favorable to him as the law and the evidence would admit.

For the error in refusing the first and second charges asked, the judgment is reversed, and the cause remanded for further proceedings, with leave to the defendant, if so advised, to withdraw his plea of not guilty, and demur to the indictment.