102 Kan. 503 | Kan. | 1918
The opinion of the court was delivered by
William T. Wellman appeals from a conviction on the charge of having violated the statute making it a felony for a parent, without lawful excuse, to neglect or refuse to provide for the support and maintenance of his child under the age of sixteen years, who is in destitute or necessitous circumstances.
The period within which the defendant is charged to have been guilty of such omission extended from November 10,1916, to February 10, 1917. During that time and until after his arrest he was not in the state of Kansas, but was living in Kansas City, Mo., and his three children, were with their mother — his divorced wife — in Lawrence, Kan. His arrest was made under color of the federal law .respecting the interstate rendition of fugitives from justice, the governor of Kansas having made a requisition upon which the governor of Missouri issued a warrant, under which he was arrested and turned over to the Kansas officials.
1. The defendant maintains that the district court acted without jurisdiction because, not having been in this state at the time of the alleged commission of the offense charged, he was not a fugitive from justice, and therefore was not within the provisions of the federal statute referred to. In this contention, so far as relates to the regularity of the arrest, he is borne out by the authorities. The rule invoked results in the unfortunate and anomalous possibility that a murderer standing in North Carolina (for instance) may shóot and kill a man
Granting, however, that the governor of Missouri was not required by the federal statute to issue a warrant for the arrest of the defendant, that there was no statutory authority for the issuance of such warrant, and that he might have been discharged upon a writ of habeas corpus if he had sought that relief before being brought into this state, it does not follow that there is any defect in the jurisdiction of the court by which he has been tried and convicted, or that he can now derive any advantage from the fact that his presence here is not due to his own consent or to any process of law valid in Missouri. No right within the protection of the federal government is invaded by the method by which the defendant’s presence was procured. (Pettibone v. Nichols, 203 U. S. 192.)
“We are of the opinion that after the prisoner is within the jurisdiction of the demanding state, and is there applying to its courts for relief, he cannot raise the question as to whether or not he has been, as a matter of fact, a fugitive fpom the, justice of the state within the meaning of the federal constitution, and the act of Congress. A careful and diligent examination of the many authorities touching upon this subject, and the reasons that exist for invoking the aid of the writ in such cases, convince us that -the question as to whether or not a citizen is a fugitive from justice is one that can only be available to him so long as he is beyond the jurisdiction of the state against whose laws he is alleged to have transgressed. It is a remedy which does not go to the merits of the case, and does not involve the inquiry as to whether or not he is in fact guilty or innocent of the offense charged. It is a remedy that merely goes to the question of his removal from the jurisdiction in which he is found to the jurisdiction against the laws of which he is charged with offending. If these views be correct, and we believe they are, it follows that so soon as the prisoner is within the jurisdiction of the demanding state, both the reason and object for invoking this principle of law have ceased and- can no longer have any application. . . . The warrant of the chief executive of the state surrendering the prisoner, whether issued lawfully or unlawfully, has accomplished its purpose and becomes functus officio, so soon as the prisoner is delivered into the jurisdiction of the demanding state, and its validity and the regularity of its issuance thereupon cease to be questions open to the consideration of the courts oi the demanding, state. . . . One who commits a crime against the .laws of the state, whether committed by him while in person*508 on its soil or absent in a foreign jurisdiction, and acting through some other agency or medium, has no vested right of asylum in a sister state -[citing eases], and the fact that a wrong is committed against him in the manner or method pursued in subjecting his person to the jurisdiction of the complaining state, and that such wrong is redressible either in the civil or criminal courts, can constitute no legal or just reason why he himself should not answer the charge against him when brought before the proper tribunal.” (pp. 255, 256, 257.)
We do not regard the conclusions stated as in conflict with what is decided in The State v. Simmons, 39 Kan. 262, 18 Pac. 177. That was a proceeding in contempt against two persons for {heir failure to appear as witnesses in response to a subpoena. An attachment was issued against them on which a Kansas sheriff arrested them in Nebraska and brought them in irons into this state, where they were adjudged guilty of contempt. On appeal, the judgment was reversed because of the unlawful means used to bring them before the court. The jurisdiction of a district court to try a person on a charge of having committed a pubiic offense does not depend upon how he came to be in this state. These might, however, in a particular case, be such oppression and want of fair dealing in the matter as to justify a dismissal of the case. But we do not think such course is required by the fact that the defendant has been surrendered by the authorities of another state without the existence of any statute requiring such action on their part.
2. The defendant also insists that the statute on which the prosecution is based does not apply to him, because of his absence from the state at the time of the commission of the alleged offense. He argues that while it is possible for one who is outside of the state to violate its criminal laws, this can only result under the conditions named in the statute which reads:
“Every person being without the state, committing or consummating an offense by an agent or means within the state, is liable to be punished by the laws thereof in the same manner as if he were present and had commenced and consummated the-offense within the state.” (Gen. Stat. 1915, § 7930.)
This statute is but declaratory of the common law.. (12 Cyc. 208; 8 R. C. L. 101.) It does not purport to enumerate all the conditions under which a person absent from the state may become an offender against its punitive laws. If the failure of a
“Any parent who shall, without lawful excuse, desert or neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances, shall be guilty of a crime and, on conviction thereof, shall be punished by imprisonment in the reformatory, or penitentiary, at hard labor, not exceeding two years.” (Gen. Stat. 1915, § 3410.)
The offense here created is essentially one of omission, and the aid of supplementary legislation is not needed to bring a person who is outside of the state within its condemnation.
“Such an offense as desertion or failure to provide for a wife or children is however negative, the omission of a duty, and therefore venue depends on the question where the omission to perform that duty occurs; and where the husband abandons his family and they become destitute, he owes the duty of'support at the place of their residence and nowhere else; accordingly, it is usually held that the breach of duty occurs there and the venue should be laid there.” (8 R. C. L. 310.)
“While a statute has no extra-territorial force, and one cannot be indicted here for what he does in a foreign country, the making of a contract in a foreign country may, as in this case, create a condition operative in this country, under which acts of omission or commission can be punished here.” (Head note, United States v. Nord Deutscher Lloyd, 223 U. S. 512.)
This question has already been determined by this court against the defendant (In re Fowles, 89 Kan. 430, 131 Pac. 598), and the argument in his behalf amounts to a request to review that decision. We are satisfied with the law as there declared and adhere to the conclusion already reached.
3. The evidence of the state tended to show these facts: The defendant and his wife were married in Kentucky, and later moved to Lawrence, where they resided for some years. In 1911 they moved to Kansas City, Mo. About June 20, 1913, his wife, because of his ill treatment, left him, and with their children came to Lawrence) presumably without his knowledge or consent. In February, 1916, she there obtained a divorce in an action in which personal service had been made upon the
The defendant maintains that the fact that his wife brought the children from Missouri to Kansab without his knowledge or consent is fatal to the conviction. The cases bearing on the effect of nonresidence of the defendant upon, the enforcement of laws making the desertion or nonsupport of a wife or family a crime, are collected and classified in a note to The State v. Gillmore, 88 Kan. 835, 129 Pac. 1123, in 47 L. R. A., n. s., 218. In the note it is said:.
“Where the wife after her abandonment removes to another jurisdiction vpluntarily and without the husband’s consent, th§. general rule as stated above [holding the husband criminally liable at the wife’s residence] will usually not apply, especially in simnle_ahandonmenh.cases. for in such cases it is generally held that the offense is complete where the abandonment takes place, and the vafe cannot, by taking up her residence elsewhere, confer jurisdiction upon another court to punish the husband for that offense.” (p. 222.)
Two of the New York cases cited under the subdivision relating to removals from one county to another (People ex rel. Drake v. Bergen, 36 Hun, [N. Y.] 241, and People v. Vitan, 10 N. Y. Sup. 909) arose under statutes relating to abandonment, and proceeded on the theory above indicated — that the offense is not continuous, but is completed when the husband has left his wife, and that her subsequent residence cannot affect the matter. . That doctrine manifestly can have no application to cases arising under statutes like our own, which make nonsupport, as well as desertion, a distinct ground of prosecution. In a third New York case it was held, under a different statute, that where a husband and wife had separated by agreement, he was criminally liable for nonsupport in a jurisdiction into which she had subsequently moved. (People v. Meyer, 33 N. Y. Sup. 1123.) The remaining case referred to in this subdivision holds that, under a statute similar to our 'own, a husband whose misconduct has compelled his wife to leave him can thereafter be prosecuted for her riimsupport only in the county in which he resided — not in the one into which she has removed. (State ex rel. Delevan v. Justus, 85 Minn. 114.)
We think that whether the defendant is answerable to the Kansas courts depends upon whether he owed this state a duty to support his children while thev _w£re-ham_with their mother. Although he was divorced from her, they were' still his children and, except for special circumstances, he was under an obligation to support them. If they had been wrongfully taken by her from his home, where he was ready to. care for them, doubtless he would owe no duty to provide for them at the place where she detained them. The statute covers such a situation by penalizing nonsupport only when it is “without lawful excuse.” But if through the misconduct of the defendant it became necessary for the mother to remove them from his control he would not be thereby relieved from his obligation to provide for them. What the fact was in this regard was one of the matters involved in the determination of his guilt or innocence. It was shown, however, that in an action to which he was a party, and in which personal jurisdiction over him had been acquired by the service of summons, the district court of Douglas county had awarded the custody of thé children to his divorced wife on the ground that he was not a fit person to care for them, and had specifically charged him with the duty of providing for their support. Whatever might have been the situation otherwise, the decree of the court afforded a basis for a finding that the defendant was under a legal duty to provide
4. Complaint Is made of the exclusion, of evidence, but at the hearing of the motion for a new trial it was not produced. The section of the criminal code enumerating grounds for the granting of a new trial does not refer to the rejection of evidence. (Gen. Stat. 1915, § 8191.) Such a ruling is available in support of a motion for a new trial in a criminal case only by virtue of the provision making the procedure of the civil code applicable thereto. (Gen. Stat. 1915, § 8124; The State v. Keleher, 74 Kan. 631, 87 Pac. 738.) The provision of the civil code requiring excluded evidence to be produced at the hearing of a motion for a new trial, if it is to be relied upon (Gen. Stat. 1915, § 7209), therefore applies here and the ruling complained of is not reviewable.
5. At the trial the defendant asked to introduce the record of the decree in the divorce case. • An objection to it was sustained, the court saying that if the defendant wanted the jury to know about the order he would state that it was made because the court believed the defendant was in fault and was
6. Complaint is made of an instruction to the effect that the children should be deemed to be in destitute or necessitous circumstances within the provisions of the- statute, so far as the defendant was concerned, if they would have been in such condition if they had not been provided for by some one else— that it would.be no defense to show that their necessities had been relieved by others. This is in accordance with the law as declared in The State v. Waller, 90 Kan. 829, 136 Pac. 215.
Objections made to other rulings either relate to the effect of the evidence, as to which the verdict must be regarded as final, or present the same legal questions as those already discussed.
The judgment is affirmed. -.
