Moorman v. StateMoorman v. State
- Reporters:
- ,
- Before:
- Holden
delivered the opinion of the court.
Dan Moorman appeals from a conviction and sentence of two yeаrs in the penitentiary, on a charge of deserting his. wife and children and refusing to provide for their support, they being in destitute and necessitous circumstances, under chaрter 212, Laws of 1920. Section 1 of the act reads as follows:
“That any husband who shall, without just cаuse, desert or wilfully neglect or refuse to provide for the support and maintenаnce of his wife in destitute or necessitous circumstances; or any parent who shаll, without lawful excuse, desert or willfully neglect or refuse to provide for the suppоrt and maintenance of his or her child or children under the age of sixteen years in dеstitute or necessitous circumstances, shall be guilty of a felony and, on convictiоn thereof, shall be punished by fine not exceeding five hundred dollars, or imprisonment in the penitentiary, not exceeding two years, or both, with or without hard labor, in the discretion of the court.”
It will be observed the act, malting wife desertion a felony, provides the husbаnd shall be guilty where the desertion is without just cause and he refuses to provide for the suрport and maintenance of his wife and children, who are then and there left “in destitute or necessitous circumstances.” Therefore, in order to make out the crimе against the husband, it must be shown beyond a reasonable doubt that the wife or children were left in destitute or necessitous circumstances by the wrongful desertion. The statute now mаking the offense a felony is, of course, to be strictly constructed, and unless the proof in the case *868sustains the charge here that the wife and children were refused suрport while “in destitute and necessitous circumstances,” the state must fail in the prosеcution.
We have carefully examined and considered the ev-. idence offered by the state to sustain the indictment, and we are convinced the proof is insufficient to warrant a conviction. The testimony of the prosecutrix, together with other рroof by the state, shows that at the time of the desertion by the husband she and her children were not left in destitute and necessitous circumstances, as charged in the indictment. Shе testified she owned and possessed individually forty acres of land, unincumbered and valuеd at five hundred dollars; that the husband divided with her the milk cows and other stock, and gave her some money, a.nd offered her other substantial assistance; that, when driven froni‘home by hеr husband, she went to the home of her son-in-law and there remained, and refused offers of assistance sent to her by the husband. The son-in-law was .hostile toward appellant аnd forbade his coming upon the premises. During this time there was litigation between the husband аnd wife for the possession of a child, and near the same time a new child was born, аnd appellant offered to pay the doctor’s bills.
The act of the legislature here involved was intended to embrace and remedy the specific evil of wrongful desertion, when such desertion would leave the wife and children in destitute or necessitous circumstances; and. with that purpose the severe penalty of imprisonment in the penitentiary was imposed. It is our. opinion that the meaning of the law with reference-to destitute and necessitous circumstances is that the wife or children must have been left in a condition of extreme want — without possessions or resources from which the actual necessaries of life could be obtained or reálized. We dо not think, however, it is necessary for conviction to show that the deserted ones were in dire poverty and distressful want; but, in order to come within the meaning of the statute, it must appear that they are substantially destitute or *869without means of securing the reasonable necessities of life, and unless the proof establishes this condition the offensе is not committed under the law.
The constitutionality of the act’ is questioned by the apрellant, especially the last five sections; but, following the rule that this court will not detеrmine constitutional questions, except where it is necessary to do so, we shall nоt notice the interesting points presented by counsel in that regard.
In view of the conclusions stated above, the judgment of the lower court ivill be reversed, and the case remanded.
Reversed and remanded.