McDonald v. Hugo

• Decision Date: 04 March 1919
• Citation: 105 A. 709,93 Conn. 360
• Court: Connecticut Supreme Court
• Parties: McDONALD v. HUGO, Sheriff.

105 A. 709

93 Conn. 360

McDONALD v. HUGO, Sheriff.

Supreme Court of Errors of Connecticut.

March 4, 1919

Appeal from Superior Court, New Haven County; William S. Case Judge.

Habeas corpus by Michael McDonald against Philip Hugo, Sheriff. From a judgment discharging petitioner from further custody respondent appeals. No error.

Demurrer to answer to return to writ of habeas corpus admits the allegation of the answer, showing that the court had no jurisdiction of the prosecution, as against contention that the jury on the prosecution passed on the place of the offense and the residence of defendant, governing such question.

Edward B. Reiley, of Waterbury, for appellant.

Clayton L. Klein, of Waterbury, for appellee.

WHEELER, J.

The record consists of the application of Michael McDonald for a writ of habeas corpus, the writ therein, the respondent's return thereto, the answer to the return and the respondent's demurrer, the ruling thereon overruling the demurrer, and the judgment rendered, discharging the petitioner from further custody upon the failure of the respondent to plead over.

The admissions of the demurrer established for this case these facts: The petitioner, Michael McDonald, had been continuously for over 20 years a resident of Naugatuck, had never been a resident of or physically present in the city of Waterbury. McDonald's wife and child lived in Naugatuck until January, 1917, when they removed to Waterbury. McDonald was arrested in Naugatuck, and brought before the city court of Waterbury charged with nonsupport of his wife and child. To this charge he pleaded, " Not guilty." He was found, " Guilty," and took an appeal from the judgment of the city court to the district court of Waterbury. The prosecuting attorney of the district court did not file an original information charging nonsupport, but did file a new information in that court charging nonsupport in the city of Waterbury, and alleging that McDonald was a resident of the city of Waterbury when in fact he was a resident of Naugatuck and never had been a resident of or domiciled in the city of Waterbury. To the new information McDonald pleaded, " Not guilty" and was found, " Guilty." He thereupon in due season filed a motion in arrest of judgment, which the court denied, and rendered judgment that he pay " $8 a week for 1 year, under bond of $500, to furnish support for his wife and child, or in lieu thereof imprisonment in the New Haven county jail for the term of six months, and to pay the costs of this prosecution, taxed at $31.89, and stand committed until judgment is complied with." Upon this judgment a mittimus was issued, and thereunder McDonald was committed to the New Haven county jail, and while there confined he prayed out this writ of habeas corpus.

The city of Waterbury and the borough of Naugatuck are both within the judicial district of the district of Waterbury. The appeal was properly taken from the city court of Waterbury to the district court of Waterbury. The temporary abode of Mrs. McDonald in Waterbury did not give the city court of Waterbury jurisdiction over the offense of nonsupport, if such was committed by McDonald. Since McDonald resided and was domiciled in Naugatuck, the residence of his wife followed that of her husband. So far as appears, McDonald neither compelled, persuaded, nor permitted his wife to reside in Waterbury. It was his duty, upon the facts of record, to support his wife at Naugatuck, his own place of residence, and not elsewhere, and if he failed or refused to do this without justifiable cause, he was guilty of the offense of nonsupport at his place of residence and not elsewhere. Were this not so, a husband might be prosecuted for nonsupport in any town or city of the state his wife chanced to be in. The jurisdiction of the city court of Waterbury is limited to offenses committed within its jurisdiction, and the borough court of Naugatuck has exclusive jurisdiction of the crime of nonsupport committed within its jurisdiction. Since McDonald resided in Naugatuck, and did not coerce, persuade, or permit his wife to go to Waterbury, he could commit the offense of nonsupport in no place other than Naugatuck. State v. Justus, 85 Minn. 114, 88 N.W. 415. The city court of Waterbury was without jurisdiction of the offense of nonsupport committed by McDonald in Naugatuck. The borough court of Naugatuck had exclusive jurisdiction of such offense.

The respondent does not attempt in argument to sustain the jurisdiction of the City Court of Waterbury over this offense. But he insists:...