106 Neb. 848 | Neb. | 1921
The plaintiff in error, Elmont F. Preston, was convicted of tbe crime of abandoning and wilfully neglecting and
January 28, 1921, the county attorney filed a complMnt in the district court for Otoe county containing two counts, the first charging that the defendant, on or about May 26, 1920, in said county, wilfully and feloniously refused and neglected to support, maintain and provide for-his wife, and the second reading as-follows:
“And the said Geo. H. Heinke, county attorney within and for the county and state aforesaid, for further complaint and information makes upon his oath as aforesaid, and says that on or about May 26, 1920, that Elmont F. Preston, then and there being in said county as aforesaid, and then and there being the father of Robert E. Preston, aged two months, then and there being in said county, and being a minor, did then and there without good, cause unlawfully, wilfully and feloniously abandon the said Robert E. Preston, his minor child, and did then and there unlawfully, wilfully and feloniously neglect to support, maintain and provide for said Robert E. Preston, his said minor child, although of sufficient ability so to do, contrary to the form ■ of the statutes in such cases made and provided and against the peace and dignity of the state of Nebraska.”
It does not appear when the prosecution was instituted. At the conclusion of the state’s case, the court directed a verdict for the defendant on the first count, and we have to deal only with the case stated in the second; The state introduced two witnesses,. May Preston, wife of the defendant, and Margaret Gaskell, her mother: while the defendant testified in his own behalf, and introduced the testimony of W. R. Holly, Louise Schnittker, and his mother, Mrs. W. J. Preston.
That part of section 8614, Rev. St. 1913, applicable to this case, is as follows: “Whoever abandons his or her
The defendant’s failure to send money to the prosecuting witness on her request seems to have been considered as an abandonment and wilful neglect or refusal to provide for his minor child. This is a non sequitur and the interpretation is incorrect. The defendant left with hisAvife’s consent and there is nothing to show that he was then or thereafter informed that the child needed anything. Of course, the defendant OAved the child the duty “to provide for” it; but to convict him, it Avas necessary to prove that it Avas in necessitous circumstances. He was not required to send the prosecuting Avitness money “to provide for such child,” as he might provide for it directly or by establishing a credit where articles suitable to its condition could be purchased. The failure or refusal of the husband to send the prosecuting witness money on her demand Avas not the commission of a crime. The phrase, “Avhoever abandons his * * * child * * under the age of sixteen years, and wilfully neglects or refuses to provide for such child,” shall be guilty of the crime of desertion, is elliptical. “Wilfully neglects or refuses to provide” Avhat? Not money, but those things that were necessary to the comfort, health and protection of an infant slightly over two months of age. The state made no attempt to show that the defendant had neglected or failed in this respect. No inflexible rule can be laid down in cases of this kind; each must be decided on its own merits. The statute was enacted for a wise purpose, but is capable of abuse and being made an instrument of intolerable oppression. It is elementary that penal statutes are inelastic and must be strictly construed; they are never extended by implica
The defendant urges that the venue was laid ’ in the wrong county, and that the district court for Otoe county had no jurisdiction of the case. It is elementary that,' notwithstanding modern statutes have greatly changed the status of married women, the husband is the head of the family and has the right to Choose the matrimonial domicile, and this right must be recognized by the wife. The matrimonial domicile of the defendant and his wife May 26, 1920, when it is claimed he committed the offense, was in Buffalo county. In Cuthbertson v. State, 72 Neb. 727, it is said: “The county in which the home is fixes the venue of the offense.” That case was well considered and has stood the test for nearly 17 years, and is vindicated by the ruling in State v. Smith, 145 La. 913; State v. Justus, 85 Minn. 114; State v. Baurens, 117 La. 136; State v. Fick, 140 La. 1063; In re Roberson, 38 Nev. 326; State v. Dangler, 74 Ohio St. 49; State v. Dvoracek, 140 Ia. 266; In re Price, 168 Mich. 527. Section 9024, Rev. St, 1913, provides, “All criminal cases shall be tried in the county where the offense was committed,” and if the county in which the home was fixes the venue of the offense, if any, it is clear that the district court for Otoe county was without jurisdiction.
The judgment is reversed and the cause remanded.
, Reversed.