98 A. 346 | Conn. | 1916
This is a complaint under the Public Acts of 1905, chapter 214, p. 410, charging the defendant with unlawfully neglecting and refusing to support his wife who had separated from him. It is undisputed that Elizabeth Newman is the wife of the accused and that he has not supported her. This, as the defendant claims and has offered evidence to prove, was owing to the fault of the wife. This charge was contradicted by the wife and by other witnesses. *8
The Act upon which this prosecution is based, in part provides: "Every person who shall unlawfully neglect or refuse to support his wife or children shall, upon conviction, be deemed guilty of a felony and shall be imprisoned not more than one year, unless he shall show to the court before which the trial is had, that, owing to physical incapacity or other good cause, he is unable to furnish such support; provided, that in case of conviction for the offense aforesaid, the court before which such conviction is had, may, in lieu of the penalty herein provided, accept from the person convicted a bond to the treasurer of the town in which such conviction is had, or in case of conviction on appeal, to the treasurer of the town in which conviction is originally had, with good and sufficient surety, conditioned for the support of the wife, child, or children, as the case may be, or for the payment of such sum towards such support as the court may find the necessities of the case and the ability of such person may require."
The defendant requested the court to instruct the jury as follows: "No conduct on the part of the defendant in this case, except adultery or conduct toward and treatment of his wife which amounts to intolerable cruelty, can justify or excuse her abandonment of him or her refusal to cohabit and live with him."
This request was properly refused. The terms of the statute, "who shall unlawfully neglect or refuse to support his wife," should be put upon broader ground than that claimed for them by the defendant. The statute in question is general in its terms, embodying no exceptions, and when interpreted fairly it furnishes no justification for the defendant's contention that this action cannot be maintained unless it appears that the husband had been guilty of adultery or intolerable cruelty. It may be stated that there is no universal *9
proposition that governs the general questions involved in this case. What is a reasonable excuse to justify the wife in leaving her husband, and what conduct of the wife will justify the husband in refusing to support his wife, under the circumstances of a given case, are questions for the jury. Commonwealth v. Ham,
It is to be observed that this proceeding is not instituted in the name of the wife, but that it is a criminal prosecution in the name of the State. The evidence necessary to sustain a prosecution like the present one is altogether different from that in an action brought directly in the name of and for the benefit of the wife. State v. Karagavoorian,
It is also to be noticed that in the case of Belden v.Belden,
The eighth, ninth and tenth assignments of error are *11 criticisms of single, detached sentences of the charge. These portions of the charge, when considered separately, may appear open to the criticism that they improperly state the degree of proof required of the defendant to justify a refusal, upon the defendant's part, to support his wife. But when we regard the entire charge of the court upon this point, we think that the jury could not have been misled upon the subject referred to in these three assignments.
A discussion of the eleventh assignment of error involves a consideration of the question raised by the three assignments just referred to. The eleventh assignment is as follows: "But if he has proven such facts, that is to say, if he has proven that the parties are living apart from the sole fault of the wife and her refusal to bear the burdens of the marital relation resting upon her, and has proved such facts by a sufficient amount of evidence to raise in your mind a reasonable doubt whether the refusal to support her was or was not unlawful, — then the State has failed to prove its case beyond a reasonable doubt, and your verdict should be `not guilty.'" The following passage from the charge, which immediately preceded the instructions just referred to, illustrates the manner in which the court treated this subject. It had just stated: "Here, as in every criminal case, gentlemen, the State must make out the facts which are charged beyond a reasonable doubt. It must satisfy you beyond a reasonable doubt not only that the accused has neglected and refused to support his wife, but that he has refused unlawfully. But, as I have said, the refusal is in itself unlawful, or the neglect is itself unlawful, unless excused. The defendant must prove some set of facts which justifies his neglect or you must find the refusal unlawful." These instructions were sufficiently favorable to the defendant upon this point, and accord with *12
the declarations of this court in the case of State v.Schweitzer,
There is no error.
In this opinion the other judges concurred.