Dobbins v. State

• Decision Date: 11 September 1922
• Docket Number: A-3938.
• Citation: 208 P. 1056,21 Okla.Crim. 403
• Parties: DOBBINS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

208 P. 1056

21 Okla.Crim. 403

DOBBINS v. STATE.

No. A-3938.

Court of Criminal Appeals of Oklahoma

September 11, 1922

Syllabus by the Court.

For information held sufficient to charge the offense of wife abandonment, and not bad for duplicity, see body of opinion.

Where the jury is authorized to assess the punishment, any evidence tending either to aggravate or mitigate the offense is admissible.

It is not error to refuse to give a requested instruction, where there is no evidence sufficient in law to support the theory on which the requested instruction is based.

Where there had been no effort to annul the marriage, the fact that the husband married his wife under duress is no valid defense to a charge of wife abandonment.

Appeal from County Court, Dewey County; W. A. Carlton, Judge.

Leo Dobbins was convicted of wife abandonment, and he appeals. Affirmed.

Fred L Hoyt, of Taloga, and E. A. Darnell, of Clinton, for plaintiff in error.

The Attorney General, for the State.

MATSON J.

On the 12th day of October, 1920, the county attorney of Dewey county, Okl., filed an information, duly verified, in the county court of said county, which, omitting the caption, is as follows, to wit:

"In the name and by the authority of the state of Oklahoma, now comes J. H. Antrobus, the duly qualified and acting county attorney in and for Dewey county, state of Oklahoma, and gives the county court of Dewey county, state of Oklahoma, to know and be informed that Leo Dobbins did, in Dewey county, and in the state of Oklahoma, on or about the 18th day of May, in the year of our Lord one thousand nine hundred and twenty, and anterior to the presentment hereof commit the crime of wife abandonment in the manner and form as follows, to wit:

That Leo Dobbins, a person at and within the county of Dewey and state of Oklahoma, on or about the 18th day of May, 1920 did then and there without good cause abandon his wife, Leona Dobbins, and has ever since said date refused and neglected to maintain and provide for the said Leona Dobbins, and that on the 25th day of August, 1920, a child was born to Leona Dobbins and her husband, Leo Dobbins, to wit, Lucile Dobbins and the said Leo Dobbins has failed and willfully neglected to provide for said Lucile Dobbins, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.

J. H. Antrobus, County Attorney."

On the same day defendant was brought before the court, and was released under a bond of $500 to appear at the January, 1921, term of the county court. On the 3d day of January, 1921, the cause came regularly on for trial, and the case being called for trial, defendant was duly arraigned, at which time he filed a demurrer to the information on the following grounds:

"(1) That the information does not substantially conform to the requirements of the statute.

(2) That more than one offense is charged in the information and in the same count.

(3) The facts stated do not constitute a public offense.

Wherefore said defendant prays the court to set aside the information herein and discharge this defendant."

Which demurrer was by the court overruled, and exceptions saved by defendant. The defendant then entered a plea of not guilty, and a jury was duly chosen and sworn to try said cause. Whereupon the state introduced its proof and rested, and the defendant introduced his evidence and rested. The defendant offered requested instructions numbered A, B and C, which were respectively as follows, to wit:

"No. A. Gentlemen of the jury, you are instructed that the state has failed in this case to produce evidence sufficient to base a conviction upon, and the court instructs you to return a verdict of not guilty." (Which instruction was refused, and exceptions saved by defendant.)

"No. B. Gentlemen of the jury, the court instructs you that the information in this case charges that on the 25th day of August, 1920, a child was born to Leona Dobbins and her husband, Leo Dobbins, to wit, Lucile Dobbins, and that said Leo Dobbins has failed and willfully neglected to provide for said child, Lucile Dobbins, and the court informs you that the state has totally failed to produce sufficient evidence upon which to base a conviction under the charge of failing and neglecting to provide for said child, Lucile Dobbins, and the court instructs you that the defendant cannot be convicted of the charge of abandoning said child. You are therefore instructed to render a verdict of not guilty of the charge of abandoning said child or failing or neglecting to provide for said Lucile Dobbins." (Which instruction was refused, and exceptions saved by defendant.)

"No. C. Gentlemen of the jury, you are instructed that the defendant interposes as one of the defenses in this case that the marriage was entered into and the marriage vows made by reason of threats on the part of the father of the prosecuting witness, and that by reason thereof the marriage contract and marriage vows entered into by said defendant were null and void, and that the same would constitute grounds of divorce. And you are instructed that if you find from the evidence that such marriage was entered into through fear and because of the threats of the father of the prosecuting witness, and that the marriage was not voluntary on the part of the defendant, the same will constitute a defense to the crime charged, and you should find the defendant not guilty and so say by your verdict." (Which instruction was refused, and exceptions saved by defendant.)

The court thereupon gave instructions numbered 1 to 11, inclusive, and defendant objected and excepted to instructions 1, 2, and 3 on the following grounds:

"Comes now the defendant, and excepts to the instructions given by the court, and especially to instructions numbered 1, 2, and 3, for the reason that the court fails to instruct the jury on the entire charge made in the mdictment, and especially that he fails to charge them on the law in regard to the crime of abandonment, and failing and refusing to support one Lucile Dobbins, his alleged child."

The jury returned a verdict of guilty, but failed to agree upon the punishment. The defendant moved to discharge the defendant, notwithstanding the verdict, for the reason there was not sufficient evidence upon which to base a conviction, which motion was overruled, and exceptions saved. The defendant was then sentenced by the court to pay a fine of $500, to be paid to Leona Dobbins in weekly installments of $10.

A motion for a new trial was duly filed by defendant, and presented to the court, and thereafter overruled, to which action objection was made and exception taken. The...