May v. State
| Decision Date | 22 November 1950 |
| Docket Number | No. 32857,32857 |
| Citation | 44 N.W.2d 636,153 Neb. 369 |
| Court | Nebraska Supreme Court |
| Parties | MAY v. STATE. |
Syllabus by the Court.
1. Crimes of the same class or grade subject to the same punishment may be charged in separate counts of an information.
2. The essential elements of the offense defined by section 28-450, R.R.S.1943, are that a decree of divorce and support of children was rendered by a court of this state against the accused requiring him to pay an amount in a specified manner at a designated time for the benefit of his children, and that the accused has, without good cause, failed to pay it at the time and in the manner required by the decree.
3. An information must inform the accused, with reasonable certainty, of the accusation made against him that he may have an opportunity to prepare a defense and plead the judgment as a bar in any later prosecution for the same offense.
4. An information must allege directly each fact that is an essential element of the crime intended to be charged, so that the accused will not be required to go beyond it to be informed of the charge against him, and the information may not be aided by intendment, inference, implication, or matters stated by mere recital.
5. The court will not disregard a defect as to any matter of pleading in a criminal action when because thereof the constitutional rights of the accused have been violated by failure to give him proper information of the nature and cause of the accusation against him.
6. Where the record shows that the jury in arriving at a verdict of guilty in a criminal case disregarded the instructions of the court, the verdict is contrary to law and will be set aside and the judgment thereon reversed.
7. A verdict of guilty in a criminal case that is contrary to the evidence will not be sustained.
J. E. Willits, Hastings, for plaintiff in error.
C. S. Beck, Atty. Gen., William T. Gleeson, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Avery May, defendant and plaintiff in error, was accused and convicted of failure to pay, without good cause, amounts provided for support of his children by a decree of divorce rendered in the district court for Adams County. He was given the maximum sentence. His application for a new trial was denied and he has presented the record of his conviction and sentence to this court for review.
The statute defining the crime of failure to pay, without justifiable reason, previously adjudged amounts for child support (Section 28-450, R.R.S.1943) contains these provisions: Contrary to the argument of the State, this act does not create or define 'a continuing crime.' It provides in the clearest language that the failure to pay without good cause each separate installment or payment of such money as provided by the decree shall be held to be a separate offense and punishable as such. In a prosecution based on this act, the facts constituting each obligation of the accused to pay child support as provided in the decree of divorce, and each default made by him in that regard should be alleged with reasonable certainty as a distinct offense and, of course, more than one obligation to pay and more than one failure to perform might properly be included in separate counts in a single information. Sheppard v. State, 104 Neb. 709, 178 N.W. 616, 18 A.L.R. 1074; Forney v. State, 123 Neb. 179, 242 N.W. 441. See, also, Fussell v. State, 102 Neb. 117, 166 N.W. 197, L.R.A.1918F, 421.
The accusation made by the information is: '* * * that AVERY MAY in the County of Adams, and State of Nebraska * * * then and there being, against whom a Decree of Divorce and child support has been rendered by this Court is and has been without good cause, refusing and neglecting to pay the child support as provided in the said Decree of Divorce for the support of his children, * * *.'
The essential elements of the offense defined in the statute are that a decree for divorce and support of children was rendered against the accused by a court of this state requiring him to pay an amount in a specified manner at a designated time for the benefit of his children, and that the accused has, without good cause, failed to pay it at the time and in the manner required by the decree. The information does not by direct allegation assert that a decree of divorce and support for the children of the accused was rendered by a court of this state against him, that it adjudged him to pay in a designated manner for support of his children an amount on a specific date, or that he had failed to pay, without good cause, an amount of child support at the time and in the manner provided and required in the decree. These are essential facts to be alleged before it can be said the offense sought to be charged against the defendant is set forth in the manner required to constitute a sufficient charge of the crime.
An information must inform the accused with reasonable certainty of the charge against him that he may prepare his defense and be enabled to plead the judgment thereof as a bar to a later prosecution for the same offense. Article I, section 11, Constitution of Nebraska; Pauli v. State, 151 Neb. 385, 37 N.W.2d 717. It must state expressly and directly each fact that is an essential element of the crime intended to be charged so that the accused will not be required to go beyond the information to learn the nature of the charge against him or the issue he must meet, and it cannot be aided by...
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State v. Palmer
...requires that the accused be informed or have the right to demand "the nature and cause of accusation," citing, further, May v. State, 153 Neb. 369, 44 N.W.2d 636 (1950), and Kissinger v. State, 123 Neb. 856, 244 N.W. 794 (1932). Defendant is in error in that regard. As we previously noted ......
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Shepperd v. State, 34567
...483. If the information informs the accused with reasonable certainty of the charge made against him it is sufficient. See May v. State, 153 Neb. 369, 44 N.W.2d 636. We conclude that the trial court did not err in overruling the defendant's motion to quash the The record discloses that Bert......
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Neb. Const. art. I § I-11 Rights of Accused
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