Osborn v. Harris

• Decision Date: 10 March 1949
• Docket Number: 7260
• Citation: 203 P.2d 917,115 Utah 204
• Court: Utah Supreme Court
• Parties: OSBORN v. HARRIS, Warden

203 P.2d 917

115 Utah 204

OSBORN v. HARRIS, Warden

No. 7260

Supreme Court of Utah

March 10, 1949

Original Proceedings By Donald B Osborn Against John E Harris, Warden Utah State Penitentiary, For Writ of Habeas Corpus To Secure Plaintiff's Release From Custody

Writ dismissed.

George M. McMillan, of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and A. John Brennan Asst. Atty. Gen., for defendant.

Pratt Chief Justice. Wade, Wolfe Latimer, and McDonough, JJ concur.

OPINION

Pratt, Chief Justice.

This matter is before us upon a Writ of Habeas Corpus with two issues raised: (1) Was an offense committed in the State of Utah; and (2) was there due process in arresting and extraditing the plaintiff?

Plaintiff was a resident of and physically in The Dalles, Oregon, during the period covered by a criminal complaint filed against him in the State of Utah. The complaint was filed on March 3, 1948, by his wife who, with their minor children, was then living in the State of Utah. She charged him with failure to provide for herself and their minor children, and the period covered by the charge was from October 1, 1947, to March 3, 1948. However, she was not living in the State of Utah all that time, but from the 1st of October, 1947, to about the 23rd of October, 1947, she was living with her husband in The Dalles, Oregon, and between October 23, 1947, and about the 4th or 5th of December, 1947, she was looking after a niece in Burley, Idaho. She came to her former home in Logan, Utah, in December, 1947, and has lived there ever since. Her change of residence from The Dalles, Oregon, to Burley, Idaho, and then to Logan, Utah, was after an agreement with her husband, which arose out of the fact that he was out of work and was not at that time able to support her and the children. She complained that he had been drinking a great deal for some six months prior to the arrangement and that the agreement was entered into for the purpose of enabling him to get a job and then send for her and the children, or if he was unable to do so, he would go to Burley, Idaho, and see what he could do there.

When she left The Dalles she fully intended to return and live with him and make that city her home, but after she left, she never heard from him any more, and he never sent her any money for herself and the support of their children. Finally, she concluded that he was not going to live up to his agreement and filed the criminal complaint indicated above.

Petitioner was arrested in The Dalles, Oregon, and was held for some nine days without having been informed that he "has the right to demand legal counsel." See Section 26-2610, Ore. Comp. Laws, set out hereafter. After signing a written "waiver of extradition" four days after arrest, by which he sought to exonerate the Oregon Sheriff and his deputies from any responsibility, he was brought to Logan, Utah, and there arraigned and when brought up for trial entered a plea of guilty to the offense charged. At his arraignment and at the time of trial, he was informed of his right to counsel by the committing magistrate and also by the trial judge but stated that he did not care for counsel. The record is not very clear as to whether or not he knew that counsel could be appointed for him or whether he thought that to have counsel it was necessary for him to employ counsel. The court imposed a sentence upon him of 18 months in the Utah Prison but suspended the sentence, and, with his consent, placed him on probation and secured a job for him on a dairy ranch. Subsequently, he was brought into the court charged with having violated his probation by giving up the dairy job contrary to his agreement in court. He claimed that he gave up the dairy job by reason of transportation difficulties. He did get other work and made some payments to his wife, but not in the manner provided by the court upon his probation. The court found that he had violated his probation and sent him to prison upon the sentence previously imposed.

He submitted a petition for Writ of Habeas Corpus, and in view of the importance of the issue, and the fact that plaintiff is impecunious, counsel was appointed to represent him and the hearing upon this petition followed. Counsel is to be commended for the merit of the work he performed.

Plaintiff's wife, before their marriage lived in Utah. She met plaintiff while he was a patient in an Army Hospital in Utah. After his convalescence, he went to Oregon, his home, and she went to Oregon to marry him. They were married there in September 1944, and lived there until the events that are the foundation of this proceeding.

Issue Number (1), was a crime committed in Utah?

The authorities upon this question are divided. One line of authorities stresses the points that the state in which the charge is filed has no power to provide rules of conduct for non-residents while they are out of the state; and that to hold otherwise, would enable the wife to make the defendant guilty in any jurisdiction of her choice. The other line of authorities stresses the question of where the duty to support lies -- in the state where he lives, or in the state where she lives?

In the case of State v. Hopkins, 171 La. 919, 132 So. 501, a father was charged with failing to provide for his child from January 1930 to December 1930. From January 1930 to October 1930, the father was domiciled in the state of Washington, and the balance of the time he was in Louisiana. The court upheld the charge for the time he was in Louisiana, but had this to say as to the time he was in Washington:

"During the time that relator resided and was domiciled out of the limits of the state, the state had no jurisdiction over him and could prescribe no rule of conduct for him. And since the state could provide no rule of conduct for him, it follows that he could not be guilty of any offense against it."

See also Commonwealth v. Acker, 197 Mass. 91, 83 N.E. 312, 125 Am. St. Rep. 328; and State v. Borum, 188 La. 846, 178 So. 371. A case similar in principle, but not in facts, as it pertained to the territorial jurisdiction of an inferior court of St. Louis, Mo. is the case of State v. Christopher, Mo. App., 267 S.W. 62. The court in this case emphasized the point that if a different principle were adopted the wife could choose the jurisdiction in which to make her spouse criminally liable -- no doubt the idea was that by such choice she could seek out the state which would impose the greatest penalty upon him.

In the case of State v. Wellman, 102 Kan. 503, 170 P. 1052, 1056, L. R. A. 1918D, 949, Ann. Cas. 1918D, 1006, defendant husband was charged with the crime of failure to provide during a period he was living in Missouri, while his wife and children were living in Kansas. He contended she took the children to Kansas without his consent. The court had this to say:

"We think that whether the defendant is answerable to the Kansas courts depends upon whether he owed this state a duty to support his children while they were here with their mother. Although he was divorced from her, they were still his children, and except for special circumstances he was under an obligation to support them. If they had been wrongfully taken by her from his home, where he was ready to care for them, doubtless he would owe no duty to provide for them at the place where she detained them. The statute covers such a situation by penalizing nonsupport only when it is 'without lawful excuse'. But if through the misconduct of the defendant it became necessary for the mother to remove them from his control, he would not be thereby relieved from his obligation to provide for them. What the fact was in this regard was one of the matters involved in the determination of his guilt or innocence. It was shown, however, that in an action to which he was a party, and in which personal jurisdiction over him had been acquired by the service of summons, the district court of Douglas county (Kansas) had awarded the custody of the children to his divorced wife on the ground that he was not a fit person to care for them, and had specifically charged him with the duty of providing for their support. Whatever might have been the situation otherwise, the decree of the court afforded a basis for finding that the defendant was under a legal duty to provide for them while they were with their mother in this state. The omission to perform this duty occurred here. The defendant is not being prosecuted for any wrongful behavior which resulted in his wife and children leaving him; such misconduct, if it occurred, could not be a violation of a Kansas statute, but might bring about a condition under which the defendant was under an affirmative obligation to act, and by merely remaining passive might become a violator of our laws. He is under prosecution for his disobedience of the statute which took place between November 10, 1916, and February 10, 1917, by his then neglecting and refusing to provide for the support of his children. If he had sent his wife and children into Kansas, it would hardly be doubted that he became responsible for their care here. If as a result of his wrongdoing they were obliged to leave him and seek refuge elsewhere, the circumstance that they found shelter in a state which undertakes to punish the neglect of parental duty under such circumstances, when they might have chosen one having a different policy in that regard, imposes upon him no hardship of which he has any standing to complain. Their being here was not due to his deliberate choice, but according to the state's theory it was the result of his voluntary misconduct."

This case discusses at length the cases holding the contrary. The Kansas statute and the Utah s...