209 N.W. 529 | Minn. | 1926
The record discloses these facts: The mother of the children died in the year 1922, leaving them in the care of Phoebe Cambern, their maternal grandmother. The oldest child is 13 and the youngest five years of age. Defendant remarried two months after the death of the children's mother. He had steady employment in a garage in Minneapolis, where he earned $30 a week until August 20, 1925, when he quit work and went to Florida. After he left Minneapolis and up to February 2, 1926, his contributions toward the support of his children aggregated $80, which was not enough to maintain them. He did not tell Mrs. Cambern that he was going to leave the state. She was first informed of his departure when she received a letter from him mailed at Miami, Florida. On February 2, 1926, the grand jury of Hennepin county returned an indictment charging defendant with wilfully deserting and abandoning his children on or about September 1, 1925. A bench warrant was issued and he was taken into custody at Jacksonville, Florida, on February 5th, brought before the district court of Hennepin county and arraigned on February 15th, entered a plea of not guilty, and on February 26th a jury was impaneled and sworn to try him upon the charge set forth in the indictment. After the trial began, the case was dismissed on the motion of defendant's counsel, and on the same day, upon the complaint of Mrs. Cambern charging defendant with wilfully failing to support his children, he was again arrested, placed on trial in the municipal court of the city of Minneapolis, convicted and sentenced to imprisonment in the Minneapolis workhouse. At the trial he entered a plea of not guilty, and filed in writing a plea setting forth the proceedings in the district court, claiming that by reason thereof he had been put in jeopardy of punishment for the same offense. To show that he had been in jeopardy, he introduced in evidence the record and files in the district court, and at the close of the evidence asked the court to instruct the jury to return *36 a verdict of not guilty. The request was denied and an exception taken.
On this appeal he assigns as error the refusal to sustain his plea of former jeopardy, the refusal to exclude evidence of nonsupport prior to February 2, 1926, and the denial of his motion for a directed verdict.
The greater portion of the brief in his behalf is devoted to a discussion of the first assignment of error.
In State v. Sommers,
"What constitutes `jeopardy of punishment' * * * and when it attaches, are questions upon which there is not entire harmony among the authorities. * * * We think it may be considered as settled by the great weight of authority, and in accordance with sound principle, that a person is put in jeopardy of punishment, in the legal sense, when a trial jury is impaneled and sworn to try his case, upon a valid indictment, or, as it was expressed at common law, `when the jury is charged with the defendant.'"
In State v. Moore,
"It is possible that the evidence to sustain the plea of former conviction was technically incomplete, in that, at the time of the defendant's second trial, judgment had not been actually entered on the verdict in the first case."
In State v. Healy,
"The plea of a former acquittal `must be upon a prosecution for the same identical act and crime.' * * * When the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second."
In State v. Artz,
In State v. Summerland,
"At common law * * * the rule was that an indictment under which defendant had been tried and upon which judgment had been pronounced could be made the basis of a plea bar to other indictments charging the same offense, but nothing short of a conviction or acquittal would support such a plea."
In State v. Kiewel,
"There can be no jeopardy of punishment in the legal and constitutional sense until a jury is impaneled and sworn to try the accused on a valid indictment. * * * In view of the possibly exclusive effect of the statutory enumeration of pleas to an indictment, there is some question whether * * * former jeopardy * * * can be asserted by plea in advance of the trial or whether they can be availed of only under the general issue at the trial."
These excerpts from the opinions indicate that it is doubtful whether defendant made a sufficient showing that he had once been in jeopardy of punishment for the nonsupport of his children, but for the purpose of this discussion we will assume that he did. Nevertheless we are of the opinion that the plea was properly overruled. The offense of nonsupport of wife or children, as defined by G.S. 1923, § 10136, like the offense of desertion, as defined in G.S. 1923, § 10135, is a continuing one. State v. Clark,
There was no error in the admission of evidence of defendant's shortcomings prior to February 2. Proof of nonsupport during that period was competent to show his intent or disposition to neglect his children. It tended to show that his failure to perform his duty after February 2 was wilful. Even if the jury acquitted defendant at the first trial, it does not follow that evidence introduced at that trial was not admissible at the second trial. City of Duluth v. Nordin,
The last assignment of error cannot be sustained. It is true that there cannot be a conviction unless the failure to support is wilful and without legal excuse. State v. Garrison,
We are told in defendant's brief that he was imprisoned after he was brought here from Florida and could not earn any money while deprived of his liberty. The record is silent as to this and of course we cannot look beyond it to ascertain the facts. But, even if it had been shown that defendant was in custody continuously after February 5th, that fact alone would not be a legal excuse for his failure to make any provision for the support of his children. The jury might infer that all defendant's earnings prior to his arrest had not been spent and that it was within his power to have made some provision for the children's support after February 2nd, had he been disposed to do so.
Judgment affirmed. *39