Cuthbertson v. State
| Decision Date | 07 December 1904 |
| Docket Number | 13,813 |
| Citation | 101 N.W. 1031,72 Neb. 727 |
| Parties | EDWARD M. CUTHBERTSON v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.
REVERSED.
Brome & Burnett and A. G. Ellick, for plaintiff in error.
Frank N. Prout, Attorney General, and Norris Brown, contra.
Edward M. Cuthbertson, hereinafter called the defendant, was convicted in the district court for Douglas county of the crime of wife desertion, under the provisions of section 212a of the criminal code, and was sentenced to imprisonment in the county jail for a period of six months, and required to pay the costs of the prosecution. From that judgment he brings error.
1. Defendant's first contention is that the trial court erred in overruling his objection to the introduction of any evidence and his motion in arrest of judgment, because the information does not charge a crime; or, in other words, it does not allege a violation of the provisions of the statute in question. The act, so far as it relates to the question involved in this case, reads as follows:
"That every person who shall, without good cause, abandon his wife and wilfully neglect or refuse to maintain or provide for her, * * * shall, upon conviction, be deemed guilty of a desertion and be punished by imprisonment in the penitentiary for not more than one year, or by imprisonment in the county jail for not more than six (6) months."
It is apparent from reading the statute above quoted that abandonment alone, even without good cause, is not sufficient to constitute the crime of wife desertion. There must also be a wilful neglect or refusal to maintain or to provide for the wife, without good cause. The law is somewhat drastic, but it seems clear that the legislature never intended to make it a penal offense for a man to live separate and apart from his wife. Indeed, conditions sometimes arise where parties cannot well live together, and to continue the marital relation would be intolerable to one or perhaps both of them. While it requires the commission of both acts to constitute the crime yet it is beyond question that the real purpose of the legislature in passing this statute was to make it a penal offense for a man, without good cause, to neglect or refuse to maintain or provide for his wife. To furnish maintenance for the wife is a legal duty which a husband owes to her, the performance of which should be made certain, unless by her own conduct she forfeits her right to demand it; and when such forfeiture occurs, the husband may be said to have good cause for his neglect or refusal to perform that duty. Again, there can be no conviction under the statute in question if it appears that by reason of physical injury or disability, such as destroys the earning capacity of the husband, together with his lack of property, money or estate, he is unable to support his wife. The existence of such a condition would amount to good cause, and constitute a complete defense to a prosecution on such a charge. So we are of the opinion that it was necessary to charge in the information that both the abandonment and the neglect or refusal of the defendant to maintain or provide for his wife were without good cause. The charging part of the information is as follows:
"That on the 18th day of September, in the year of our Lord one thousand nine hundred and three, Edward M. Cuthbertson, late of the county of Douglas aforesaid, in the county of Douglas and state of Nebraska, aforesaid, then and there being, and then and there being the lawfully wedded husband of Mildred Cuthbertson, then and there unlawfully and without good cause did abandon his said wife, the said Mildred Cuthbertson, and did then and there wilfully, unlawfully and feloniously neglect and refuse to maintain or provide for her, the said Mildred Cuthbertson."
A fair construction of the language above quoted leads us to the conclusion that the words "without good cause" apply to the charge of abandonment only, and that the information fails to allege that the defendant's neglect and refuse to maintain or provide for his wife was without good cause. The sufficiency of this charge was questioned at every stage of the proceeding, and we should not under such circumstances give the language a strained construction in order to hold it sufficient. It will be observed that the prosecutor in attempting to charge the offense has not followed the language of the statute. It is a well settled rule that an indictment for a statutory crime must follow, in substance, the language of the statute. 1 Bishop, Criminal Procedure (4th ed.), sec. 614. Judge MAXWELL in his work on Criminal Procedure (2d ed.), 145, speaking of indictments says: "Let the pleader charge the offense in the words of the statute, and if the offense is made a felony by statute allege that the act was 'feloniously' done." Indeed, it is a fundamental rule that in charging a statutory offense it is always necessary, and generally...
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