State v. Ransell

Phelps, J. The information in this case is brought for the violation of one of the several clauses of section seventy-five, of chapter four, of title fifty-one, of the Revised Statutes of 1866, and the motion is predicated on certain alleged errors of the court in its ruling on the question of the admissibility of certain evidence, and in the instruction given to the jury. The charge of the court is first objected to for the reason that the jury were instructed that the law imposes on husband and wife the reciprocal duties of the marriage relation while [440] it continues, without reference to any particular circumstances connected with the marriage; and that if a marriage lawful in form and free from fraud or other invalidating difficulty was proved, the husband was bound to support the wife without regard to her previous character or conduct, or to any advice given or inducements held out to him, by reason of which he changed his determination not to marry. In this we perceive no error. The instruction was of course given with reference to the facts in the case, and the recital in the motion shows that the defendant was acquainted with the previous character of his wife and participated in the wrongful conduct of which she is claimed to have been guilty before the marriage. Any representations made to him while under arrest upon a process seeking to compel him to give security for the support of an unborn child whose paternity was charged to him, to the effect that he had better marry to avoid imprisonment, and that he need not live with and could obtain a divorce from his wife, though they may have operated to remove his objections to the marriage, yet they constitute no legal defence to a prosecution against him for misspending his earnings and not providing for the support of his family. If the obligation to support a wife and children may be held to be contingent upon such considerations, the security for their proper maintenance, now in many cases quite uncertain, will be precarious indeed. It is further objected that the court declined to instruct the jury that to find the defendant guilty they must be satisfied beyond a reasonable doubt that he wilfully misspent those earnings which he should have appropriated to the support of his family, and did not otherwise provide for them, and that to convict the defendant they must find that he was a person of similar habits and character to those of the other classes of persons enumerated in the same section of the statute. The jury were told that the other clauses in that section, and all questions of character, except as pertinent to the inquiry whether the defendant misspent his earnings, were immaterial, and that to determine that question in the affirma [441] tive it was not necessary to prove a criminal, reprehensible, or morally improper expenditure of earnings; and that this clause of the statute was violated when a man having a family and earnings sufficient for their support, appropriates them to other purposes, leaving his family unprovided for; and that he was responsible if a vicious omission of duty was proved. By this we do not understand, and we think the jury could ■not have understood the court to mean, that an intent to violate this provision of the law was not necessary. We think a vicious omission of duty includes such an intent. The record shows that the defendant deserted his wife immediately upon the marriage, and in fact married her with that purpose, and continued such desertion until his arrest upon the information. The intent to abandon his wife and his deliberate refusal to support his family, were under the circumstances necessarily found by the jury. The fact also appears that he was in the receipt of sufficient earnings, and thereby possessed the ability, to furnish the necessary support, but instead of doing that, that he expended them in assisting the family of his brother and for other purposes, all which may have been otherwise lawful, and not a literal wasting or squandering of his means, yet, accompanied by the wrongful intent, none the less a misspending with reference to the support of his family. We think the charge was in this respect unexceptionable. The court admitted evidence offered by the state to prove the fact of non-support by the defendant of his family during the entire time, which was about a month, between the marriage of the parties and the commencement of the prosecution; to which the counsel for the defendant objected, ■ except as to that which applied only and directly to the day named in the information. We do not dpubt but that the evidence was admissible, if not as substantive proof of the commission of the offence on the day named, at least to show the guilty intent to withhold the support which the law imposed on the defendant, and the intentional refusal to furnish which is an essential element [442] in the offence. It may have been satisfactorily shown by a less amount of proof, or by that embraced within a narrower space of time, but we see no objection to it in its application to the question of intent existing in the mind of the defendant on the day named in the information. We advise that a new trial be not granted. In this opinion the other judges concurred; except Foster, J., who, having tried the case in the court below, did not sit.