Draper v. Commonwealth

79 S.E. 322, 115 Va. 941, 1913 Va. LEXIS 87

• Court: Supreme Court of Virginia
• Decided: September 11, 1913
• Status: Published

Opinion

Whittle, J.,

delivered the opinion of the court.

This writ of error brings under review the judgment of the corporation court of Roanoke city of conviction of the accused, James Draper, under Ya. Code, sec. 3795-c, for desertion and non-support of his wife.

The evidence sustains both allegations of the indictment; and, therefore, if a motion to direct a verdict in favor of the accused were permissible at all und'er our procedure, it was properly overruled in this instance.

The other errors assigned by the accused which demand notice are these: (1) The refusal of the court to admit evidence to show that the accused had two small children by a former marriage dependent upon him for support.

Such evidence is inadmissible where the non-support of the wife, as in this case, was total.

(2) The second instruction asked by the accused and refused by the court amounts to this: that a husband cannot be found guilty of non-support of his wife when, after a separation between them, caused by his misconduct, the wife takes service and supports herself. In other words, that such action on the part of the wife operates a condonement of the offense. To state the proposition is to answer it.

(3) The last instruction, which the court also refused, told the jury “that if they believed from the evidence that the wife . . . caused this indictment to be made because of her ill-will and hatred for her husband, and not because of his alleged desertion and neglect, then they must find for the defendant not guilty.”

There is no evidence to sustain this instruction; but, if there had been, this is a prosecution by the Commonwealth against the accused for violation of the criminal law of the State, and whatever motive may have actuated the wife to testify against him is immaterial.

In any view of the case, the judgment is plainly right and must be affirmed.

Affirmed.