100 P.2d 942 | Nev. | 1940
In the petition for the writ and traverse to the return it is alleged that petitioner is a resident of the State of Nevada, and not a fugitive from justice of the State of California; that he left the State of California on or about the 20th day of October 1939; that when he left California he and his wife no longer maintained the marital relationship in that his wife sought and obtained a decree of separation from him in the superior court of California, in and for the county of San Diego; that pursuant to said decree and on October 5, 1939, he paid to his wife the sum of $40 for her support and maintenance, and thereafter, and after the 15th day of October 1939, he caused to be paid to his wife the sum of $20 as and for her support and maintenance.
1. On the hearing petitioner introduced in evidence an exemplified copy of a decree of separate maintenance obtained by his wife against him, rendered in the superior court of the State of California, in and for the county of San Diego, on November 4, 1937, in which it was ordered, adjudged and decreed that he pay to her the amount of $10 per week until further order of court.
Petitioner contends that this decree is a bar to a criminal prosecution for abandonment and nonsupport. It is easy to see why such a decree is a bar to a criminal prosecution for wife abandonment, for its terms preclude such an act. The decree has put it out of the power of the husband to commit such an act, by effecting a legal separation. In in re Kuhns,
But it cannot be held a bar to prosecution for failure to provide, which is charged in the complaint. The prosecution was commenced under section
The effect of this statute is to make the act of unlawfully abandoning a wife by a husband, a crime, and a further effect is to make his act of unlawfully refusing or neglecting to provide her with the necessary food, clothing, shelter or medical attendance, a crime. Similar statutes have been similarly construed. O'Brien v. State, 90 Tex.Crim. R.,
In construing a similar statute, the court, in O'Brien v. State, supra, said [90 Tex.Crim. R., 234 S.W. 669]: "We believe a fair construction of the statute would be as though it read `that any husband who shall willfully or without justification desert his wife, etc., would be guilty,' or that any `husband who shall willfully or without justification neglect or refuse to provide for the support and maintenance of his wife, etc., would be guilty.' If the evidence should disclose a state of facts where the husband may not have actually deserted his *113 wife, but continued to live with her and yet willfully or without justification neglected or refused to provide for her support and maintenance when she was in destitute and necessitous circumstances, he being able to so support and provide for her, we can see no reason why, under the law, he might not be guilty of an offense."
The same reasoning will apply where, as here, a separation has been effected by judicial decree and the obligation for support and maintenance fixed therein.
The case chiefly relied on by petitioner is People ex rel. Com'rs of Charities v. Cullen, supra, but the case is not helpful to him. In that case the husband had been adjudged in a lower court to be a disorderly person in that he had abandoned his wife and left her in danger of becoming a charge upon the public. In the court of appeals the question was whether the defendant had abandoned or deserted his wife. The court held that there could be no abandonment within the meaning of the statute when the husband lives apart from his wife in obedience to a judgment of separation from bed and board, obtained at the suit of the wife. The court said [
The judgment of separation was therefore a bar to the prosecution. So it would be here if petitioner was charged only with wife abandonment. But he is charged also with the crime of wrongfully refusing and neglecting to provide his wife with the necessary food, clothing, shelter and medical attendance.
The separate maintenance decree did not absolve him *114 from that obligation, as did the judgment in the case, supra. Consequently, the decree cannot be held a bar to the prosecution for the latter offense.
We have examined the other cases cited by petitioner but cannot extract therefrom the conclusion reached by him that a separate maintenance decree in which alimony has been adjudged is a bar to a criminal action in California for nonsupport. He contends that the only remedy the wife has in such a case is by contempt proceedings, or by civil suit brought upon the decree for alimony that may be in arrears. That may be true, as far as the wife is concerned, but she is not a party in the criminal proceedings under said section 270a. The people's right to enforce the penal laws of the state is absolute. It is not dependent upon what remedy may be open to the wife in a civil action. We hold that the decree of separate maintenance is no bar to the criminal prosecution for nonsupport.
2. It is next insisted by petitioner that he is not a fugitive from justice because after the time charged in the criminal complaint and immediately prior to his leaving the State of California, he paid to his wife the sum of $60 for her support A receipt and statement purporting to show such payment were offered in evidence and admitted, subject to the objections of respondent. We now sustain those objections, and hold the offered evidence inadmissible.
The offense of willfully omitting, without lawful excuse, to provide the wife with the necessary food, clothing, shelter or medical attendance under said section 270a, is in the nature of a continuing offense. It was so held in People v. Curry,
A somewhat similar situation confronted the court in Ex Parte Quint, supra. The court said [
4, 5. It is well settled that a court, on habeas corpus in interstate extradition, cannot try the question of guilt or innocence of the accused. Ex Parte La Vere,
As said in Bruce v. Rayner, 4 Cir.,
See In re White, 2 Cir.,
There is nothing in the Nevada cases cited by petitioner contrary to the well-settled rule on habeas corpus in interstate extradition, that the question of the guilt or innocence of the accused is not triable in the courts of the asylum state. This is not a case where the evidence is of such a character as to show conclusively that the crime charged could not have been committed by the petitioner.
The writ should be and is quashed.
It is ordered that petitioner forthwith surrender himself to the sheriff of the county of Washoe, State of Nevada, to be delivered into the custody of the duly appointed agent of the State of California for return to that state, and that upon compliance with this order his bail may be exonerated. *117