No. 23625 | Miss. | Nov 5, 1923
Lead Opinion
delivered the opinion of the court.
This is an appeal by the state from a judgment of the circuit court of Warren county sustaining a demurrer to an indictment charging a husband with desertion or failure to support his wife and children in destitute or necessitous circumstances, under chapter 212, Laws of, 1920, which malíes such an offense a felony punishable by imprisonment in the penitentiary. The demurrer was sustained upon the t ground that the act of the legislature is void as being in conflict with several sections of the state Constitution.
In order to understand the points raised and the de-cisión of the cáse it becomes necessary to set out the first five sections of chapter 212, Laws of 1920, the constitutionality of which act is here involved:
' “An act relating to desertion and non-support of wife by husband, or of children by either father or mother, and providing punishment therefor; and to promote.uniformity between the states in reference thereto.
“Desertion and Non-8upport of Wife or Ghildren— Penalty for.
■ “Section 1. Be it enacted by the legislature of the state of Mississippi, that any husband who shall, without just cause, desert or wilfully "neglect or refuse to provide for the support and maintenance of his wife in destitute or*436 necessitous circumstances; or any parent who shall, without lawful excuse, desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances, shall be guilty of a felony and, on conviction thereof, shall be punished by a 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.
“ Who may Institute Complaint.
“Sec. 2. Proceedings under this act may be instituted upon complaint made under oath or affirmation by the wife or child or children, or by any other person, against any person guilty of either of the above names offenses.
“Order of Court, Pendente Lite.
“Sec. 3. At any time before the trial, upon petition of the complainant and upon notiee to the defendant, the court, or a judge thereof in vacation, may enter such temporary order as may seem just, providing for support of the deserted wife or children, or both, pendente lite, and may punish for violation of such order as for contempt.
“Provision for Support — Defendant may be Released on Probation. , *
“Sec-. 4. . Before the trial, with the consent of the defendant, or at the trial, on entry of a plea of guilty, or after conviction, instead of imposing the penalty herein-before provided, or in addition thereto, the court in its discretion, having regard to the circumstances, and to the financial ability or earning capacity of the defendant, shall have the power to make an order, which shall be subject to change by the court from time to time, as circumstances may require, directing the defendant to pay a certain sum periodically, for a term not exceeding two years, to the wife or to the guardian, curator or custodian of the said minor child or Children, or to an organization or individual approved by the court as trustee; and shall also have the power to release the defendant from custody*437 on probation for the period so fixed, upon Ms or her entering into a recognizance, with or without surety, in such sum as the court or a judge thereof in vacation, may order and approve. The condition of the recognizance shall be, such that if the defendant shall make his or her personal appearance in court whenever ordered to do so, and shall further comply with the terms of such order of support, or of any subsequent modification thereof, then such recognizance shall be void, otherwise of 'full force and effect.
“When Probation Order Violated — Power of Court to Enforce.
“Section 5. If the court be satisfied by information and due proof under oath, that at any time during said period of two years the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original charge, or sentence him or her under the original conviction or enforce the suspended sentence, as the case may be. In case of forfeiture of recognizance, and enforcement therof by excution, the sum recovered may, in the discretion of the court, be paid, in. whole or in part, to the wife, or to the guardian, curator, custodian or trustee of the said minor child or children.”
The act is attacked as unconstitutional on several different grounds. We will point out a few of them, but shall decide only one, which will be sufficient for the present.
It is contended the act is void because it violates section 27 of the Constitution, which provides for prosecution of felonies by indictment only; it violates sections 26 and 31 of the Constitution, in that a jury trial is denied; it violates section 159 of the Constitution, in that it usurps the jurisdiction of the chancery court in matters of alimony; that it is void because of the conflict between sections 1 and 4 of the act; it is void as contravening section 87 of the Constitution, in that it is a law enacted for the benefit of individuals; that it authorizes a suspension of the general law for the benefit of an individual; void because it is.in conflict with section 124 of the Constitution.
As said above, we shall only pass upon one of the constitutional grounds presented, and that is whether or not the act violates section 27 of the Constitution. The other constitutional questions raised are enumerated by us for the purpose of pointing out all of the possible defects in the legislation.
The act, in our opinion, clearly violates section 27 of the Constitution, in that it (section 2, 3, 4 and 5) provides for the complete prosecution of the felony nai led in section 1 and the infliction of the penalty therefor “upon complaint made under oath” by any person.
Indictment for the felony is not contemplated by the chapter. The third, fourth, and fifth sections of the act vest jurisdiction in an unnamed court or judge, in term time or vacation, to try the accused and order punishment before trial, suspend sentence or add thereto after trial, or require recognizance to pay money to the deserted ones; and many other things are authorized to be done against the accused by the unnamed tribunal at any time, and the court fir official may finally adjudge and confine the defendant in the penitentiary. Ex parte Smythe, 56 Tex. Crim. 375" court="Tex. Crim. App." date_filed="1909-05-12" href="https://app.midpage.ai/document/ex-parte-smythe-3948220?utm_source=webapp" opinion_id="3948220">56 Tex. Cr. R. 375, 120 S. W. 200, 23 L. R. A. (N. S.) 854, 133 Am. St. Rep. 976; Burch v. Rate, 56 Tex. Crim. 200" court="Tex. Crim. App." date_filed="1909-05-12" href="https://app.midpage.ai/document/burch-jr-v-state-3937858?utm_source=webapp" opinion_id="3937858">56 Tex. Cr. R. 200, 120 S. W. 206; 12 C. J. p. 786; U. S. v. More
In testing an offense as to Avhether it is a felony or misdemeanor, the power given to imprison in the penitentiary determines it tb be a felony. The maximum penalty that may he imposed, or the things authorized to be done, are the controlling characteristics. U. S. v. Moreland, supra.
It is obvious the chapter is a single scheme to force the offending husband to provide for the deserted ones or suffer punishment for a felony. This is the ultimate purpose of the whole act, and the different sections are inseparable, consequently, if one is void, it cannot be lifted out, but the whole chapter must fall. -
Section 1 cannot be separated from the other sections and be held valid, because this section would not have been enacted without the adoption of the other sections. Therefore the infirmities in the latter sections permeate and infect section 1, and the whole chapter falls before section 27 of our state Constitution. ■
The judgment of the lower court sustaining the demurrer to the indictment is affirmed.
Affirmed.
Concurrence Opinion
(specially concurring).
I concur in the judgment of affirmance, but base my concurrence on the ground that section 1 of the act is void, because it does not define the offense Avith such certainty as to constitute “due process of law” as required by the state and Federal Constitutions. See United States v. L. Cohen Grocery, 255 U.S. 81" court="SCOTUS" date_filed="1921-02-28" href="https://app.midpage.ai/document/united-states-v-l-cohen-grocery-co-99713?utm_source=webapp" opinion_id="99713">255 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed. 516" court="SCOTUS" date_filed="1921-02-28" href="https://app.midpage.ai/document/united-states-v-l-cohen-grocery-co-99713?utm_source=webapp" opinion_id="99713">65 L. Ed. 516, 14 A. L. R. 1045, and cases therein cited. If properly drawn, section 1 of the act could be separated from the other sections and upheld. The chapter attempts to create both civil and criminal remedies, and each would be effectual, at least to some extent, without the other.