63 So. 405 (La. 1913), 20,222, State v. Donzi

Docket Nº:20,222
Citation:63 So. 405, 133 La. 925
Opinion Judge:SOMMERVILLE, J. PROVOSTY, J.
Party Name:STATE v. DONZI. In re DONZI
Attorney:Arthur Landry, of New Orleans, for relator. P. J. Patorno, of New Orleans, for Mrs. G. Donzi. C. C. Luzenberg, Dist. Atty., of New Orleans, for the State.
Judge Panel:PROVOSTY, J., dissents on the point of the admissibility of proof of first marriage of wife, and will hand down reasons. PROVOSTY
Case Date:October 20, 1913
Court:Supreme Court of Louisiana
 
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Page 405

63 So. 405 (La. 1913)

133 La. 925

STATE

v.

DONZI.

In re DONZI

No. 20,222

Supreme Court of Louisiana

October 20, 1913

Rehearing Denied November 17, 1913

SYLLABUS

(Syllabus by the Court.)

The civil district court shall have 'exclusive jurisdiction in suits by married women for separation of property, in suits for separation from bed and board, for divorce, or nullity of marriage,' etc. Article 133 of the Constitution.

The criminal district court shall have exclusive original jurisdiction for the trial and punishment of all offenses where the penalty of death, imprisonment at hard labor, or imprisonment without hard labor for any time exceeding six months, or a fine of $ 300 may be imposed, and it is without jurisdiction to determine the validity of a contract of marriage. Const. art. 139.

In a suit against the husband for wife desertion under Act No. 34 of 1902, p. 42, it is incompetent for the accused to offer evidence going to show the nullity of the marriage between him and his wife, except by the offer of the record and the final judgment of a court of competent jurisdiction decreeing said marriage to be null.

It is within the province of the trial court to decide whether a husband or father has 'just cause' for deserting his wife, or for refusing to support his wife or children, who are in necessitous circumstances, and such finding will not be reviewed by this court where the jurisdiction of the trial court is not involved, or the proceedings shown to be null.

Arthur Landry, of New Orleans, for relator.

P. J. Patorno, of New Orleans, for Mrs. G. Donzi.

C. C. Luzenberg, Dist. Atty., of New Orleans, for the State.

PROVOSTY, J., dissents on the point of the admissibility of proof of first marriage of wife, and will hand down reasons.

OPINION

[133 La. 926] SOMMERVILLE, J.

Relator has been found guilty of wife desertion under Act No. 34 of 1902, p. 42, which act declares wife desertion to be a misdemeanor, and punishable by fine or imprisonment, or both. He has been ordered to pay to the criminal sheriff, for the benefit of his wife, the sum of $ 5 per week for one year from the date of the judgment.

He asks that writs of certiorari and prohibition issue directed to the judge of division B of the criminal district court for the parish of Orleans and the district attorney for said parish, forbidding them to proceed further with the prosecution against him, and that he be declared not guilty of the misdemeanor charged --

'for the reason that the criminal district court for the parish of Orleans was not vested with jurisdiction to try the charge lodged against him, [133 La. 927] and for the further reason, if this ground be dismissed, that relator was not permitted to introduce evidence to make a proper defense and show 'just cause' under the statute, the provisions of which he is charged with violating, and that he be dismissed from further custody.'

In the case of State v. Barilleau, 128 La. 1033, 55 So. 664, we hold that rules for

Page 406

alimony may not be filed in a civil proceeding for the annulment of a marriage, although they may be filed in suits for separation and divorce, and that the remedy provided in Act No. 34 of 1902, p. 42, declaring child desertion to be a misdemeanor, was valid. The cases of State v. Mioton, 112 La. 180, 36 So. 314, State v. Gersdorf, 124 La. 547, 50 So. 528, and State v. Boettner, 127 La. 253, 53 So. 555, are not applicable to the matters involved in this case.

The Constitution, art. 139, confers upon the criminal district court for the parish of Orleans exclusive original jurisdiction for the trial and punishment of all offenses where the penalty of death, imprisonment with hard labor, or imprisonment without hard labor for any time exceeding six months, or a fine exceeding $ 300 may be imposed, etc., and Act No. 34 of 1902, p. 42, defining wife desertion to be a misdemeanor, provides that, upon conviction, defendant may be punished by a fine not exceeding $ 100 or by imprisonment in the parish prison not exceeding one year, or both, in the discretion of the court. The criminal district court has therefore jurisdiction in the case against defendant.

The allegation of relator to the effect that 'he was not permitted to introduce evidence to make a proper defense and show 'just cause' under the statute' for deserting his wife is based upon the ruling of the trial court sustaining objections to certain evidence which he --

'proposed to offer to the court, both documentary and oral, attacking the validity of the marriage out of which his prosecution grew, and also to show that a suit for the annulment of said [133 La...

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