Jenness v. State
79 N.W. 759
Wis.
1899
Check Treatment
*W"inslow, J.

1. The contention that the information was bad for duplicity must be overruled. The statute governing the offеnses charged in the information was sec. 45810, S. & B. Ann. Stats.; and it provided, in effect, that if a parent, being of sufficient ability, shall unreasonaWy refuse or neglect to provide for his or her minor child, or if, being а husband, he shall, under like circumstances, refuse or neglect to provide for his wife, he shall be dеemed guilty of a misdemeanor, and ‍​‌​‌‌​​​​‌‌‌‌​‌​​​‌‌‌​​​​​‌‌​‌​‌​‌​​​​​​‌‌​‌​​‌​‍on conviction shall be jDunished by imprisonment, etc. The rule is that “ where a statute makes it a crime to do this or that or the other, mentioning several things disjunctively, all of which are punished alike, the Avhole may be charged conjunctively in a single count, as constituting but a single offense.” Clifford v. State, 29 Wis. 327. The husband'being also a parent, it is quite clear that the effect of the statute is that if the husband, being of sufficient ability, unreasonably refuses to provide for his wife or child, he shall bе punished;' and thus the case comes directly within the rule above quoted. U S. v. Nunnemacher 7 Biss. 131.

2. The contention that thе jury should have been summoned under ‍​‌​‌‌​​​​‌‌‌‌​‌​​​‌‌‌​​​​​‌‌​‌​‌​‌​​​​​​‌‌​‌​​‌​‍the provisions of ch. 176, Laws of 1897 (now found in see. 2533a et seq., Stats. 1898), must also be overruled. Sec. 4587A, S. & B. Ann. Stats., which governs spеcially the trial of this offense in county courts, provides that, if there be no panel of jurors in аttendance, the court shall issue a special venire to the sheriff, requiring him to summon a specified number of jurors from residents of the county *557qualified to serve as jurors in courts of record. This spеcial provisiou must be held to control, as against general provisions. Plainly, the expression, “ qualified to serve as jurors in courts ‍​‌​‌‌​​​​‌‌‌‌​‌​​​‌‌‌​​​​​‌‌​‌​‌​‌​​​​​​‌‌​‌​​‌​‍of record,” refers to the qualifications necessary under secs. 2521, 2525, and does not mean that the persons must have been summoned in the manner laid down in ch. 176, Laws of 1897.

3. Certain rulings on the reception of evidence are assigned as error. An uncertified сopy of the marriage certificate was received in evidence against objeсtion. But the complaining witness had previously, without objection, testified directly to the fact of mаrriage at a certain time and place, and before a certain officer. This was sufficient evidence of the fact. Firmeis v. State, 61 Wis. 140. There was no evidence to the contrary, and the defendant when on the stand frequently referred to his marriage with the complaining witness. The fact of marriage seems to have been undisputed. Hence the reception of the certificate, even if erroneous, was not prejudicial. Upon cross-examination the defendant was asked if he caused a certain notice to be published in a local newspaper in Dеcember, 1897, warning the ‍​‌​‌‌​​​​‌‌‌‌​‌​​​‌‌‌​​​​​‌‌​‌​‌​‌​​​​​​‌‌​‌​​‌​‍public that he would not be responsible for debts of his wife’s contracting. Objeсtion was made to the question, but he was allowed to answer, and admitted.that he published the notice. This ruling is alleged now as error. No error is perceived. The defendant had testified that he wаs always willing to support his wife and child, and upon that point this evidence seems to have been a proper cross-examination.

4. Exceptions are taken to certain parts оf the charge on the ground that the court, in effect, charged that a judgment of divorce was the only defense which the defendant could interpose, whereas there might be other reasоns which would excuse the defendant from supporting his wife. It is true the court charged in effect .that, when lawful marriage *558was established, it devolved on the defendant to show that a divorce had been granted by some lawful tribunal, and further that slight misconduct ‍​‌​‌‌​​​​‌‌‌‌​‌​​​‌‌‌​​​​​‌‌​‌​‌​‌​​​​​​‌‌​‌​​‌​‍of the wife would not justify withdrawal of support; but the court also, on defendant’s request, gave the following instruction: “ The court instructs you that, while it is the duty of the husband to support his wife to the extent of his ability, it is also clearly the duty of the wife to^ live with her husband and observe all her marriage vows; and if, without legal excuse, she abandons her home, or unreasonably refuses to live with her husband, she forfeits her rights to his support. It does not appear in the evidеnce that the wife of the defendant has ever offered to return to or to live with the defendаnt since the 19th day of April, 1897, but it does appear on several occasions she has declared that she would never live with him. If the complainant takes the ground that the defendant is under obligаtions to support her while she persists in living apart from him, she sadly misconceives her duty and obligation. When she offers to live with defendant and discharge her conjugal duties, she will then be in a position to invoke the law to compel him to perform his duties if he refuses to do so.” Certainly this instruction was fаvorable enough to the defendant, and we do not think the jury could have been misled.

We find it unnecessary to notice other errors alleged. We have found nothing that would justify reversal of the judgment.

By the Court.— Judgment affirmed.