Winslow v. State, 92 Ala. 78

Winslow v. State

92 Ala. 78 | Ala. | 1890

COLEMAN, J.

-The defendant was convicted for knowingly interfering with, hiring, employing, enticing away, or inducing a “minor to leave the service of any person to whom such service is lawfully due,” &c., as prohibited by section 3757 of the Criminal Code. The facts are, the father deserted his family some fourteen or fifteen years before the beginning of the prosecution, and has never lived with them since, or claimed the custody of, or exercised any control over, his child. The mother has had-entire control, and by her own labor raised and maintained her son during the time he was unable to contribute to his own support. It is contended for the defendant, that the services of the child are “lawfully due” the father, and not the mother as averred in the complaint.

Undoubtedly, the father is the head of the family, and the law devolves upon him the duty and responsibility of maintaining his children, and, so far as he can, providing for their proper instruction and education. For this reason, their custody and control is committed to him, and he is entitled to their services in preference to the mother, or any other person. If the father, without excuse, refuses to recognize and perform his moral and legal duty in behalf of his children, and voluntarily abandons them, while m a condition of helplessness and dependence, to the care of the mother, he thereby forfeits, at least so long as his unjustifiable desertion continues, all claim or right either to their custody or their services. The exclusive and paramount right of the father to the custody and service of the child over that of the mother, under such conditions, does not exist.

In Schouler’s Domestic Relations, p. 345, it is said: “When the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, our courts are reluctant to admit his right to the child’s services.” Our statute 'law in regard to parents and children recognize the paramount right of the father, as did the common law; but the policy of modem legislation unmistakably tends to relieve the wife and mother of the disability incident to coverture, and to invest her with many of the legal rights which, at common law, could be asserted only by the husband, and this is especially manifest when the husband deserts the wife and mother:

*81Section 2586 of the Code authorizes the mother to maintain an action for the seduction of her daughter, if the father has deserted his family. Sections 2586 and 2588 authorize the mother, in case of desertion of his family by the father, to maintain an action for an injury to a minor child, or if the injury results in the death of the minor child. The recovery in such cases is compensatory, and is measured by the value of the services of the child, and the mother is entitled to maintain the action, upon the ground that the father has deserted his family. Section 2578 provides, “when a husband or father has deserted his family, the wife or mother may prosecute and defend in his name any action which he might have prosecuted or defended, and has the same rights and powers iii reference to such action which he might have had.”

It is unnecessary to continue this part of the discussion. Her right to the services of a minor child are not lost, even though she procured a divorce from her husband on the ground of his misconduct, and she should afterwards marry again. We will only add that, in this case, the former husband sets up no claim to the custody or services of the child, and the principles of law declared applicable to the facts of this case do not relate to divorce proceedings under sections 2838 and 2368 of the Code. We hold that the trial court committed no error in ruling that the services of the child, under the evidence, were due the mother.

The objection to the admission of evidence can not be sustained. Conceding that the evidence objected to was illegal, it was directly in rebuttal to that testified to in chief by the defendant in his own behalf. In such case, the admission of the illegal evidence in rebuttal is held to be justified by the admission of such evidence in chief. — Morgan v. State, 88 Ala. 224, and authorities cited.

When documents become material evidence in a cause, the rules of law require that the original be produced, or its absence accounted for. If traced to the opposite party, notice to produce is necessary; and if disobeyed, the contents may be proved. In this case, it developed in the trial that the letter was present in court, in the possession of the defendant. He was then called upon to produce it. The failure to give him notice before the trial to produce the letter, would have been a sufficient reason to have excluded evidence of its contents, if the letter had not been in court in the possession of the defendant. All the purposes of a notice to produce the letter were fully effected without notice. The letter was produced, and read in evidence. The objection, that he had not *82been notified previously to produce it, can not avail the defendant.

There is no error in the conclusion and judgment of the trial court.

Affirmed.