McDermott v. State
| Decision Date | 23 October 1926 |
| Docket Number | A-5256. |
| Citation | 250 P. 810,35 Okla.Crim. 416 |
| Parties | McDERMOTT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Dec. 4, 1926.
Syllabus by the Court.
Where a defendant charged by information with a felony does not interpose a demurrer, but for the first time objects to the information when the state attempts to introduce testimony the objection should be overruled, if by any intendment or presumption the information can be sustained. Held that the information here is sufficient as against an objection to the introduction of testimony.
Where a husband abandons his wife in destitute or necessitous circumstances in violation of section 1856, Comp. Stat. 1921 section 2, c. 78, of the Session Laws of 1923 the venue for the purpose of prosecution under said statute is in the county where the abandonment takes place.
Appeal from District Court, Muskogee County; Enlee V. Verner, Judge.
Lee McDermott was convicted of wife abandonment, and he appeals. Affirmed.
M. D. Hartsell, of Muskogee, for plaintiff in error.
Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of wife abandonment and sentenced to serve a term of one year in the state penitentiary.
The record discloses that on June 25, 1923, the defendant, who was 20 years of age, married Ruby Newman, who was just under the age of 16; 4 1/2 months later she gave birth to a child. We gather from the record that the marriage was in settlement of a criminal prosecution against the defendant, but whether seduction or rape does not appear. Immediately after the marriage ceremony, the defendant gave his wife $2 in money, told her to get a taxi and go home, and he would be down there. She thereupon returned to her parents, and defendant left Muskogee and was gone for some six months, during which time he did not communicate with his wife nor contribute anything to her support. He explains his directions to her to go home by saying that he expected her to go to his parents' house, but it is shown that the wife had never met his parents and that they had never communicated with her. During the six-month period that defendant was absent, his wife was assisted by the United Charities Organization of Muskogee.
The charge was based upon section 1856, Comp. Stat. 1921, section 2, c. 78, of the Session Laws of 1923, which reads as follows:
The information charges:
"* * * That Lee McDermott did * * * commit the crime of wife abandonment in the manner and form as follows, to wit, that the said Lee McDermott, in the county and state aforesaid, on the 25th day of June, 1923, did knowingly, willfully, unlawfully, wrongfully, and feloniously and without good cause abandon his wife, Ruby McDermott, and ever since said date has refused and neglected to maintain and provide for her. * * *"
No demurrer was interposed to this information, but upon the opening of the trial for the taking of testimony defendant objected for the reason the information failed to state sufficient facts. It will be observed that the information does not allege that the wife was in "destitute or necessitous circumstances" at the time of the abandonment, and it is contended for that reason it lacks an essential allegation; that the necessitous or destitute circumstances is the foundation of the crime of wife abandonment, citing 22 Cyc. 326; Tucker v. State, 8 Okl. Cr. 428, 128 P. 313; Seay v. State (Okl. Cr. App.) 233 P. 766, and various other authorities.
It has been frequently held by this court that where a defendant goes to trial without demurring to the indictment or information and objects for the first time when the state offers testimony, the objection should be overruled, if by any intendment or presumption the pleading can be sustained. Edwards v. State, 5 Okl. Cr. 20, 113 P. 214; McDaniel v. State, 8 Okl. Cr. 209, 127 P. 358; Wilsford v. State, 8 Okl. Cr. 535, 129 P. 80; Clark v. State, 11 Okl. Cr. 494, 148 P. 676; Ralston et al. v. State, 16 Okl. Cr. 634, 185 P. 831; section 2822, Comp. Stat. 1921.
Under this well-established...
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