132 Va. 609 | Va. | 1922
delivered the opinion of the court.
It will be observed that the effect of the verdict was to find the defendant not guilty as to the alleged nonsupport of his wife. The further essential facts may be stated as follows:
Butler and his wife were married in 1917. For about a year prior to December 19, 1920, they lived in the city of Norfolk. Their two children at the time of the trial were, respectively, two and three years of age. There is some conflict of evidence upon the subject, but, taking it as a whole and making due allowance for some exaggeration of statement by both of the parties, it seems fair to say that prior to the last-named date, the defendant had provided for his wife and children about as well as his employment and earning capacity would permit. He had no regular avocation, and he was frequently out of work. During the periods when he was without anything to do, it was usual for his wife to go with the children to her father’s home, in North Carolina. Occasionally they went with him to his father’s home, in Virginia.
On the 9th of December, 1920, Mrs. Butler went to visit her father, and stayed about three weeks. She returned to Norfolk in January and remained with her husband for about ten days. He was out of employment at that time, and at the suggestion of his father he proposed to his wife that they go to stay with him until he could find work, but she preferred to go to her own people,' and thereupon, by mutual consent and apparently without any quarrel or mis
On the 12th of March, Mrs. Butler, accompanied by her father, came back to Norfolk, got practically everything in the way of bedroom and kitchen furniture which they had theretofore been using, took these things away, and left without seeing Butler or attempting to see him. (She testified that these things belonged to her.) He was away from the house and at work at the time. She said on that occasion to Mrs. Bradshaw, his boarding-house keeper, that she would never live with him again. On March 31st, without communicating with him further, she procured the warrant in this case. At the hearing before the judge of the juvenile and domestic relations court she said again that she would not live with him, and repeated that statement on the trial in the corporation court. The defendant admits that he only sent his wife two dollars after she went back to her father’s home in January, but he has always been willing, and is now willing, to take her and the chil
The formal assignments of error rest upon the giving and refusing of certain instructions, but the petition upon which this writ of error was granted and the brief of the Attorney General are agreed that the substantial and controlling question, for us to decide is whether, upon the evidence as certified, the judgment can be sustained.
In our view of the case, the question just suggested must be answered in the negative. A man is under legal obligation to support his children, and he may often be required to do so when they are not living with him, but he cannot be said to willfully neglect and refuse to support them where his wife, without reasonable excuse, and with the acquiescence and aid of her father, keeps them away from him, The defendant, it is true, sent his wife practically no money after their agreed temporary separation, but he had, as she knew, very little money to send, and, so far as the record shows, there was every reason for him to suppose that the arrangement pursuant to which they separated in January was satisfactory to her, and that she and the children would return to him as soon as his income improved. Her unexpected conduct of the 12th of March, when she came and got the household and kitchen furniture and went back to her father’s home with the declaration that she never intended to live with him again, finds no satisfactory excuse in the record.
' In the case of Mihalcoe v. Holub, 130 Va. 425, 107 S. E. 704, we held that the duty of a father to support his infant children was a legal duty, but we further said in that opinion : “Where the child is living away from the father, the question of his liability will depend upon the circumstances of the case. If he abandons the child, or drives him from home he is liable to any person who furnishes necessary support; but the person furnishing it must bear the burden
The statute under which this prosecution was instituted was not intended to change the common law with respect to the duty of a father to maintain and support his infant children, but merely to more effectually enforce the legal duty. Up to the time when the defendant’s wife carried away the furniture, announced that she intended to break off relations with him, and went back to her father’s home to stay, we discover nothing in the evidence to warrant the jury in finding that Butler was not acting in good faith and in reliance upon the mutual agreement pursuant to which she had gone home in January. That arrangement was voluntarily and wrongfully canceled by her, and she has been in default ever since. Notwithstanding all this, he appears to have been patient and hopeful, and said in his testimony that he simply waited after her unexpected trip in March, hoping that she would soon come back to
The authorities we have cited relate mainly to the civil liability of the father to the mother, or some third party, for necessaries furnished the children, and not to prosecutions under criminal statutes; but these authorities are conclusive as to the common law duty of the father, and we have no difficulty in holding that the. Virginia statute cannot be so construed as to enable the wife upon the facts above recited to procure a conviction of her husband for a violation thereof, either as to herself or as to her children.
The judgment complained of will be reversed, the verdict of the jury set aside, and the case remanded for a new trial, to be had not in conflict with the views herein expressed, if the Commonwealth shall be so advised.
Reversed.