State v. Dvoracek

Nov 21, 1908

Reporters:: ,
Before:: Ladd

Ladd, C. J.

— The offense defined in chapter 170, of the Acts of the Thirty-Second General Assembly, is purely modern and as certain as in the nature of things seems tо have been desirable. The first section reads: “Every person who shall, without good cause, willfully neglect or refuse to maintain or providе for his wife, she being in a destitute condition, or who shall without good cause, abandon his or her legitimate or legally adopted child or children under tire age of sixteen years, leaving such child or children in a destitute condition, or shall, without good cause, willfully neglect or refuse to рrovide for such child or children, they being in a destitute condition, shall be deemed guilty of’ desertion, and upon conviction, shall be punished by imprisоnment in the penitentiary for not more than one year, or by imprisonment in the county jail for not more than six months.” See Code Supp. 1907, Section 4775a. Analyzing this, it becomes apparent that any one of three acts stated disjunctively may subject a person to the penalty denоunced. The act of abandoning his children had been consummated prior to the taking effect of the act, and this, doubtless, accounts fоr the omission to charge him therewith. See Jemmerson v. State, 80 Ga., 111 (5 S. E., 131); State v. Hoon, 78 Neb., 618 (111 N. W., 462). But the evidence showed conclusively that from July 4, 1907, to the 26th of that month, when he was arrested, defendant neglected to maintain or provide for his wife, and during that time neglected ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to provide for his children, and that the wife and children were in a dеstitute condition. The fact that they were unable to support themselves without the aid of the county was enough to *269establish their destitution. See Inhabitants of Norridgewock v. Inhabitants of Solon, 49 Me. 385; Woods v. Perkins, 43 La. Ann. 347 (9 South. 48). And the testimony of prosecutrix that she knew of no reason why defendant did not provide for herself and family, together with proof that he had been earning $2.25 per day thе two years previous, in the absence of other evidence, was enough to have warranted the jury in finding that the neglect was without good cause. Knowledge of such good cause ordinarily is peculiarly within the keeping of the accused in such a case, and all required in bеhalf of the State is to make out a case from which the absence of good cause is reasonably to be inferred. The defendаnt then might have been convicted of the offense charged, unless it be found (1) that the indictment was bad for duplicity, or (2) that the venue was laid in the wrоng county, or (3) that the act of the Legislature is so uncertain, that it should be denounced as invalid.

1. Husband and wife: desertion: indictment: aupiicity. I. The indictment in charging the offense alleged acts, declared disjunctively ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the statute, to constitute the offense conjunctively, as constituting the the crime. lhat this was correct pleading hаg keen held repeatedly, the last time in State v. Hubbell, 137 Iowa, 570.

2. desertion: venue’ II. Was the venue rightly laid? “The local jurisdiction of the district court is of offenses committed within the county within whiсh it is held, and of such other cases as are or may be- provided by law.” Section 5154, Code. This case is not within any of the exceptions alludеd to, unless ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it be Section 5157 of the Code, which provides that: “When a public offense is committed partly in one county and partly in another, оr when the acts or effects constituting or requisite to the consummation of the offense occur in two or mo-re counties, jurisdiction is in either county *270except as otherwise provided by law.” Tbe statute under consideration, save tbe portion in relation to abandonment, is еssentially negative. Tbe penalty is denounced, ■not on the commission, of any affirmative act, but on the omission of the plainest duty. Necеssarily, then, the venue depends on where the omission to perform the duty occurred. The accused had settled with his family in Story County. Neither he nor they had done anything to change that residence. This being so,’ it was his duty as husband and father to provide for them and furnish them with food, clothing, and shelter at their place of residence in Story County. ITe owed no such duty elsewhere, and, because of’ the situation of his wife and children, must have оmitted the duty in Story County, or not at all. Somewhat akin in- principle is the line of cases deciding that the venue in embezzlement cases may be laid in the county in which it was the duty of the accused to account. State v. Hengen, 106 Iowa, 711; State v. Maxwell, 113 Iowa, 369. The presence of tire offender within the county where a crime is cоmmitted is not always essential, but some portion of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act or omission to act must have taken effect therein. 1 Bishop, New Crim. Proc. 53; 1 Bishoр, New Crim. Law, 110, 111; People v. Griffen, 2 Barb. (N. Y.) 427. While defendant, if so inclined, might have sent the means of support from the place where he was staying in Plamilton County, to have bеen effective these must have been furnished in Story County. So that, in any event, the omission of the duty was at least in part in the county where the indictment was returned. The offense is somewhat’ novel, but upon full consideration we are of the opinion that the venue is in the county where the duty of providing for the wife and children should be discharged. As supporting this conclusion, see Johnson v. People, 66 Ill. App. 103; Bennefield v. State, 80 Ga. 107 (4 S. E. 869).

*2713. Desertion: good cause. *270III. The motion to direct assailed the statute on *271several grounds. First, it is said therein that this does not define the aсt prohibited. That is true, but it does define the omission to act with as great accuracy as in the nature of things seems possible. Every emergency or situation can not well ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be defined in such a statute, and what will be good cause must necessarily depend on the proof in a partiсular case. By the expression is meant no more than sufficient cause. In the case of a wife this may be such as would justify separation. State v. Stout, 139 Iowa, 557. Othеr situations may be thought of which would excuse the husband or father. Enough now to say is that any cause will be good which affords a legal excuse for not providing for the wife or children. The expression as found in this statute seems to relate to the conduct or relations between the parties, rather than to the matter of failure to discharge the duty of rendering support. This latter is covered by the requirement that the neglect shall be willful. Of course, if the defendant is utterly without means and is unable to earn them his neglect could not well be willful, unless he purposely has placed himself in that situation. Whether the omission is willful must be determined from the evidence adduced precisely as in any other ease.

4’ tioiTof offense: It was also suggеsted in the motion that the words “in destitute condition” were not sufficiently definite. We apprehend that little difficulty will be experienced in ascertaining their meaning, and legislation properly can not be brushed aside if susceptible to any reasonable construction which will support it. Wentworth v. Racine Co., 99 Wis. 26 (74 N. W. 551). The situation of a person in a destitute condition is well understood, as are also the expressions with reference to maintaining or рroviding for wife and children. Said terms employed are as definite as in the nature of the offense were possible. As *272applied to any particular state of facts, the test is not difficult of apprehension, even to those who would forsake their domestic obligations. The cause should have gone to the jury; but, as defendant has been discharged, our duty ends with the disapproval of the court’s ruling-while allowing the judgment to stand. — Reversed.