84 Ala. 7 | Ala. | 1887
The defendant was tried and convicted for abandoning his family and leaving them in danger of becoming a burden to the public — an offense which is made punishable by fine and imprisonment under the provisions of the statute. — Code, 1886, & 4047; Code, 1876, § 4218.
The two charges requested by the defendant, and refused by the court, assert in effect that the statute must be construed to mean that the danger of becoming a burden to the public, in which the abandonment of the husband or parent places his family, must be immediate, or imminent, and not dependent on any future contingency, however probable in the ordinary course of events. This construction, in our judgment, is not tenable. The members of the defendant’s family whom he is here charged with having abandoned are his wife, and a child of tender years. They were thrown upon the charity of a brother-in-law of the wife, who possessed but meager means and was under no legal liability whatever to furnish them maintenance. The evidence tended, moreover, to show that the wife and child owned no property, and were unable to support themselves, either for want of ability, or opportunity. It was for the jury to say whether the evidence satisfied them beyond a reasonable doubt that the defendant’s family, under all the circumstances of the case, would probably become a burden to the public by reason of any contingency likely to happen, within a reasonable time, and in the ordinary course of events. Such contingency need not be immediate, nor ought it to be
The instructions requested on this point were properly refused.
The statute can n'ot be construed to make it criminal for one to abandon his wife under any and all circumstances. If she be guilty of adultery, as the evidence tends to show the defendant’s wife was in this case, he would certainly be excused in leaving her as a preliminary step to making application to the Chancery .Court for a divorce on this ground. To continue this marital relation with her, after information of her guilt, would be a condonation of it, and would operate to bar his right to claim a severance of the marriage tie. There can be no guilt where there is legal excuse or justification for the act charged. Bub while this is true, abandonment is not excused by mere suspicion of the wife’s infidelity based on rumors or other hearsay evidence. It is not enough that he may have been informed of alleged facts by others which would justify him in believing her to be guilty. The risk of abandonment is his own. The fact of her guilt must be shown, and the burden is on the husband to show it. The Circuit Court properly excluded all the evidence relating to what occurred at a certain assignation house kept by one Cora Levy, a prostitute, and her declaration made to the defendant regarding his wife. This was all hearsay, except the statement that defendant went to the house, and was refused admission; that he heard the voice of women in the house, whose identity the keeper attempted to conceal; and that defendant saw some unknown female clandestinely escaping from the premises by the back way. This evidence did not tend to identify this female as the defendant’s wife, being too remote for this purpose. Any woman, not a common prostitute, found in such a place, would probably seek to escape observation by strangers who might persist in entering the premises uninvited.
It was competent to prove that the defendant’s wife, Mrs. Carney, had not earned her living since the birth of her child, and also that her brother-in-law, Judge, who was supporting her had as many as four children, and was also supporting his own mother. These facts all bore on the question as to the probability of Mrs. Carney becoming a burden to the public, because it tended, on the one hand, to rebut the inference that she was able to maintain herself, and, on the other, to show the difficulty attending the ability
The rulings of the court are free from1 error, and the judg-. ment must be affirmed.
