Vance v. State

61 So. 305 | Miss. | 1913

Reed, J.,

delivered the opinion of the court.

Appellant was tried and convicted on a charge of vagrancy, in this: that being a married man, and having a wife and child, he did unlawfully abandon his family, and refuse to maintain and support them, and left them in danger of becoming a public charge. In the circuit court, upon the trial of his case on an appeal from the conviction in the justice of the peace court, appellant interposed a plea of former jeopardy, in which he set forth an acquittal on the same charge in a former trial during the year 1908. A demurrer to this plea was sustained. He states in the plea that his wife had deserted him and his home without fault of his, and that she refused to live with him, and went to her father’s home; also that he was at all times kind and courteous to her, providing for her and furnishing her a home and the necessaries of life; that the trial in 1908, wherein he was acquitted, was on the same charge as that in the present trial. He further sets out that since the date of the acquittal he “has had nothing to do, nor has he lived, with the aforesaid Mrs. Annie Vance,” his wife. There is nothing in the plea to show that he has since the date of the former trial provided a support for his family, and the plea does not aver that Mrs. Vance continued to refuse to live with appellant.

The charge in this case is made under section 5055, Code of 1906, declaring that certain persons shall he punished as vagrants, among them ‘ ‘ every person who shall abandon his wife or family, without just cause, leaving her or them without support, or in danger of becoming a public charge.” Under this section the abandonment of and failure to suport the wife or family, without just cause, is made a public wrong, remedial in its nature. The guilty one can be prosecuted and punished. This offense, in its very nature, is continuing;. Under the law, the'husband and father owes to his family the duty of properly and continuously providing for their support in accordance with his means. It will be noted that the state by statute has provided a punishment for the husband who fails in his duty to support his family, and it is the evident purpose of the law to require him, so far as may be possible, to discharge his duty as the head of the family. The further purpose of the law, as shown in its statement, is to prevent the husband’s family from becoming a public charge upon the state. It will be noted that the statute provides that the offense consists, not only of abandonment of the wife, but of the family. This, of course, includes children. In this case there is nothing in the plea to show that appellant has had any just cause for his failure to provide proper support for his child, and it is true that his failure to so support his child, even after the acquittal, as he claims, will render him guilty of a violation of the statute.

The facts set forth in the plea in this case are not sufficient to exclude the conclusion that appellant has been guilty of abandoning his family without just cause, and of failure to support them as now charged. Having in mind the purpose of the statute to require the husband, who is the head of the household, to provide maintenance for his family in accordance with his duty, and to prevent such family from becoming a public burden, we do not believe that the plea in question is sufficient in its averments to show former jeopardy.

Affirmed.