Trawick v. State

de GRAFFENRIED, J.

Among the numerous acts which section. 7843 of the Code declares to he an act of-vagrancy is the following: “8. Any able-bodied person who shall abandon his wife and children, or either of them, without just cause, leaving her or them without sufficient means of subsistence, or in danger of becomr ing a public charge.”

The defendant was tried in the county court of Geneva county for a violation of the above section of the Code, in that, to use the language of the affidavit upon which he was tried, “Joe Trawick, an able-bodied person, did abandon his wife and child, without just cause, leaving them without sufficient means of subsistence, or in danger of becoming a public charge, against the peace,” etc- When the accused is charged in the affidavit or indictment upon which he is tried conjunctively, as in this case, with having abandoned his wife • and child, the proof must show an abandonment of both the wife and child to sustain a conviction under the above-quoted subdivision of section 7843 of the present Code.—Carnley v. State, 162 Ala. 94, 50 South. 362.

The evidence in this case tended to show that the marriage of the defendant was had as a means of settling a bastardy proceeding which was pending against him at the time of his marriage. It was claimed, in the bastardy proceedings, that he was the father of an unborn child of an unmarried female, and to rid himself of the prosecution, and, it may be, as a voluntary act of con-donation of the wrong, he married the woman. After the marriage, and before the birth of the child, it is claimed that the defendant abandoned the wife. During that period, the wife lived with her father and mother. After the birth of the child, the- wife and child, for a short period, lived with the defendant, and it is claimed that the defendant then abandoned both the *130wife and child by withdrawing his society from them, and by his failure and;-refusal to furnish them with the necessities of life.. ■ . -

■ The above being the.situation,-charges-9 and 11, requested in writing by the defendant,- should have been given.. The words “the leave”- appearing in charge 11, were, we think, written “to live” in the original- charge, and this -patent defect in charge 11 is, in, all probability, due to an -error -of the clerk in transcribing the charge in the transcript. However this may be, the judgment of the court below must be- reversed because of the refusal of the court .to give charge-9, and, as this case must be again tried, we think -it well to call attention to the condition of charge 11 as it appears in the transcript.

The above charges assert the simple proposition that, under the affidavit in this case, there cannot, be a conviction, unless the defendant abandoned. both the wife and child. The-affidavit does not-charge the abandonment of the wife only, but the abandonment of the wife and child. In the case of Carnley v. State, 162 Ala. 94, 50 South. 362, cited by counsel for the defendant in his brief, the Supreme Court says: “The defendant in this case was charged conjunctively of abandoning both, and, of Gourse, the proof must correspond with the charge.” The above charges simply assert the proposition that, in this case, there cannot be a conviction for an abandonment of the wife before the child was born, but only of both the wife and child- They assert correct propositions of law as applied to the evidence in this case, and should have been given.

Reversed and -remanded.