People v. Albright

161 Mich. 400 | Mich. | 1910

Stone, J.

(after stating the fads). In our opinion the conviction of the respondent should be set aside, and the respondent discharged. Act No. 144, Pub. Acts 1907, is entitled—

“An act to prevent the desertion and abandonment of wife or children by persons charged by law with the maintenance thereof; to make such abandonment and desertion a felony,” etc.

The elements of the offense defined by section 1 of the act are desertion and abandonment without providing necessary and proper shelter, food, etc. It is unlike the Wisconsin statute, referred to in 1 McClain on Crimina! Law, § 58, cited by the prosecuting attorney, in this: That statute made it a misdemeanor for a husband to abandon his wife, leaving her in a destitute condition, and also made it a misdemeanor if a husband, being of sufficient ability, refused or neglected to provide for her. In the opinion in State v. Witham, 70 Wis. 473 (35 N. W. 934), a case arising under the Wisconsin statute, it is pointed out that the act provides for two cases; that the penalty of the act is incurred by the abandonment, leaving the wife destitute, and is also incurred by a wilful refusal to provide for her; that while in that case the abandonment occurred before the law took effect, the wilful refusal to provide continued to the time of trial. The Michigan statute does not make the refusal, or neglect of the husband to provide necessary shelter, etc., a felony. It makes desertion and abandonment, plus such refusal or neglect to provide, a felony.

In the case at bar the desertion and abandonment occurred in February, 1905. In so far as the statute we are considering is concerned, it was an innocent act; at least it was not a criminal act. It could not be made a criminal act by a statute thereafter enacted. If it could be assumed that the legislature intended to make the act of 1907 apply to conduct which took place in 1905, an assumption which is, of course, purely gratuitous, the act of 1907 would be an ex post facto law. In this view of the case it is unnecessary to decide the other questions raised and discussed.

The conviction is set aside, and respondent discharged.

Ostrander, Hooker, Moore, and Blair, JJ., concurred.