73 Neb. 739 | Neb. | 1905
At the September, 1904, term of the district court for Chase county, an information was filed against the plaintiff in error, by which it was attempted to charge him with the crime of wife desertion. After pleading not guilty, his counsel filed a motion to quash the information, a plea in abatement, and a motion to require the state to separately state and number the two offenses, which he claimed were set forth in the information. All of these motions and objections were overruled. A trial was had, which resulted in a conviction. The accused was thereupon sentenced to the penitentiary for a period of nine months, and to reverse that judgment he prosecutes error.
It is contended that the court erred in overruling the defendant’s plea in abatement and the motions above mentioned. It appears from the record, as above stated, that before filing said plea and motions, the accused had duly
“In a criminal prosecution for a felony, the accused will be taken and deemed to have waived all defects or irregularities which may be excepted or objected to by motion to quash or plea in abatement, when he demurs to the information or pleads to the general issue.”
Therefore, the plea and motions were properly overruled.
It is further contended that the court erred in permitting the county attorney, over the objections of the accused, to verify the information after the plea of not guilty was entered. In Bailey v. State, 36 Neb. 808; Davis v. State, 31 Neb. 247; Hodgkins v. State, 36 Neb. 160, and Johnson v. State, 53 Neb. 103, it was held: A defect in the verification of an information is waived by a plea of not guilty. So the objection was properly overruled.
It is further contended that the court erred in overruling the motion to require the state to separately state and number the offenses charged in the information, and in overruling the motion to require the prosecutor to elect on which offense he would ask for a conviction. From an examination of the information it would seem that but one offense was attempted to be charged. The statute (seo. 212a of the criminal code) on which the prosecution was based, reads as follows: “Every person who shall, without good cause, abandon his wife and wilfully neglect or refuse to maintain or provide for her, or
“Under a statute which provided, ‘Every person who shall abandon his wife or children, leaving them in danger of becoming a public charge, or who shall neglect to provide according to his means for the support of his wife or children * * * shall be imprisoned not less than six months nor more than three years,’ a complaint charged that the defendant ‘did neglect to provide according to his means for the support of his wife and children.’ Held, * * * sufficient and not bad for duplicity. Acts forbidden disjunctively by statute may generally be charged conjunctively in one count of an indictment or complaint.”
This rule seems to be supported by United States v. Hull, 14 Fed. 324; United States v. Fero, 18 Fed. 901; State v. Gray, 29 Minn. 142; State v. Carr, 6 Ore. 133; State v. House, 55 Ia. 466; In re Walsh, 37 Neb. 454. So it appears from the great weight of authority that the information in this case was not bad for duplicity.
When the state offered its evidence the defendant objected to the introduction of any testimony on the part of the prosecution, because the information did not state facts sufficient to charge him with a crime against the laws of this state; and later on, after conviction, he filed a motion in arrest of judgment, which again raised the same question. He now contends that the court erred in holding the information sufficient, and that question is thus properly presented for our consideration. In the case of Cuthbertson v. State, 72 Neb. 727, we held an information
The accused further contends that the judgment must be reversed, because the evidence introduced on the part of the state is not sufficient to sustain it. It appears from the record that no evidence was introduced or offered by the prosecution tending to show that the defendant was possessed of any means whatever; no attempt was made to show that he was an able-bodied man, or capable of earning anything with which he could contribute to the support of his wife. No circumstances were shown from which the jury could assume that he left his wife without a good cause. So far as the record shows he may have had the'best of cause for his absence from her, and may have been unable in any way to contribute to her support. In a prosecution under this statute, as in any other criminal prosecution, the burden is on the state to prove every element of the crime charged beyond a reasonable doubt.
For the foregoing reasons, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.