December 29, 1922. The opinion of the Court was delivered by The following statement appears in the record:
"The defendant, John Goins, was indicted and tried at the June term of the Court of General Sessions for Richland County, 1922, on an indictment charging him with nonsupport of his wife, Etta Goins, and his daughter, Grace Goins, who is 17 years of age and unmarried. The case was tried at the said term of Court on June 20, 1922, and resulted in a verdict of `guilty,' whereupon Hon. W.H. Townsend imposed the following sentence, to wit: `The sentence of the Court is that the prisoner, John Goins, be held to labor upon the public works of Richland County for a period of one year, or be confined at hard larbor in the State penitentiary for a like period. This sentence to be suspended so long as the defendant shall pay to the Clerk of this Court $50 monthly, on the 20th day of each month, to be applied by said Clerk to the support of Etta Goins, the wife, and Grace Goins, the minor child of said defendant and upon the said defendant giving bond in the sum of $300 conditioned upon his supporting and maintaining the said wife and child by making said monthly payments to the said Clerk of Court for their benefit and support.' In due time the defendant served notice of intention to appeal to the Supreme Court from the said sentence.
"(1) Because his Honor erred in sentencing the defendant to serve twelve months on the chaingang or pay to his wife the sum of $50 per month; said sentence being contrary to the law and beyond the jurisdiction of his Honor to impose.
"(2) Because said sentence was not according to Section 697 of the Criminal Code.
"(3) Because under the Statute 697 of the Criminal Code, punishment of the defendant could only be for one year, or to a fine not exceeding $200, and his Honor was without jurisdiction to impose upon the defendant the payment of $50 per month for twelve months, thus making the fine $600 instead of $200. *Page 195
"(4) Because his Honor erred in charging the jury that the burden of proof rested upon the defendant to show that he had a just cause or excuse, when he should have charged them the burden rested upon the State to prove its case beyond a reasonable doubt, including everything in the Statute necessary to convict.
"(5) Because the Statute is a criminal one, and must be strictly construed, and it is incumbent upon the State to prove everything necessary to convict, and is therefore necessary for the State to prove that the defendant, without just cause or excuse, had abandoned or failed to provide the actual necessaries of life to his wife or minor child and his Honor erred in charging to the contrary."
Section 697 of Criminal Code 1912, is as follows:
"Any able-bodied man who shall, without just cause or excuse, abandon or fail to supply the actual necessaries of life to his wife or to his minor, unmarried child or children dependent upon him, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned for a term not exceeding one year, or be liable to a fine not exceeding two hundred dollars: Provided, That if he, either before or after conviction, shall give bond, with one or more sureties, approved by the Clerk of the Court, in the sum of not less than $300, conditioned upon his supporting and maintaining his said wife or said minor unmarried child or children, he shall not be imprisoned or the fine imposed until the condition of said bond is broken."
His Honor, the presiding Judge, was authorized by said Section to impose an alternative sentence, but it could only be imprisonment for a term not exceeding one year, or a fine not exceeding $200. But it was a question for the Court to determine, which of the alternative sentences should be imposed. A similar question arose in the case of State v. Davis, 86 S.C. 208;68 S.E., 532, in which this Court used these words: *Page 196
"The appellant contends that the judgment after providing for imprisonment should have further provided an alternative of fine. Such a construction of the Statute would give the prisoner the right to determine whether he should suffer fine or imprisonment, whereas the Statute leaves it to the Court to determine what shall be the sentence either by fine or by imprisonment."
Not only was there error on the part of his Honor, the Circuit Judge, in failing to determine whether the sentence should be imprisonment for a term not exceeding one year or a fine not exceeding $200, but there was error, likewise, in imposing an alternative sentence that exceeding a fine of $200. Furthermore, if the alternative sentence was enforced, it would have the effect of depriving the defendant of his right to relief under the proviso in said Section.
The exceptions also assign error on the part of his Honor, the presiding Judge, in ruling that the burden of proof rested upon the defendant to show that he had a just excuse for failure to support his wife and daughter. The case of State v. Barden, 64 S.C. 206;41 S.E., 959, shows that the exceptions raising this question cannot be sustained.
As the error, however, merely pertains to the sentence imposed upon the defendant, by his Honor, the presiding Judge, it does not entitle him to a new trial, but merely to a new sentence in conformity to the requirements of the Statute. State v. Baker, 58 S.C. 111;36 S.E., 501; State v. Durham, 89 S.C. 134; 71 S.E., 847.
The sentence of the Circuit Court imposed on the defendant is reversed, and the case remanded in order that he may be resentenced, in accordance with the requirements of law.
MR. JUSTICES WATTS, FRASER and MARION concur.