Poole v. People
| Citation | 24 Colo. 510,52 P. 1025 |
| Parties | POOLE v. PEOPLE. |
| Decision Date | 21 March 1898 |
| Court | Supreme Court of Colorado |
Error to Arapahoe county court.
C. H Poole was convicted of willful neglect to support his wife and brings error. Affirmed.
January 18, 1897, information was filed before a justice of the peace, which, omitting the formal parts, charged that the plaintiff in error, 'on or about the 19th day of September, and continuously since, A. D. 1897, in the county and state aforesaid, being the husband of affiant, and an able-bodied man, did and does willfully neglect, fail, and refuse to provide reasonable support for the maintenance of affiant.' To this information, on being arraigned, he pleaded not guilty. A trial resulted in his conviction, from which he appealed to the county court, where he was again convicted, and judgment pronounced that he be confined in the county jail for a period of 40 days, or, in lieu thereof give bond in the sum of $600, conditioned for the payment to the prosecuting witness of the sum of $50 per month for 6 months. He brings the case here on error, and assigns the following, which will be discussed in the order argued: (1) Insufficiency of information; (2) insufficiency of evidence to establish the relationship of husband and wife between himself and the prosecuting witness; (3) error in admitting in evidence, over his objection, a decree of the superior court of San Diego county, Cal.; (4) form of judgment; (5) it does not appear affirmatively from the record that he was arraigned, pleaded to, or called upon to plead to the information in the county court; (6) in sustaining the objection of the people to his offer to prove that the prosecuting witness had, about April 7, 1897, given certain persons money, and had money of her own. Reference to the evidence will be found in opinion. The prosecution is based upon the provisions of section 1412a, 3 Mills' Ann. St (page 126, Laws 1893), and reads: 'It shall be unlawful for any man, residing in this state, to willfully neglect, fail or refuse to provide reasonable support and maintenance for his wife; * * * and any person guilty of such neglect, failure or refusal, upon the complaint of the wife, * * * upon due conviction thereof, shall be adjudged guilty of a misdemeanor, and shall be committed to the county jail for the period of not more than sixty (60) days; unless it shall appear that, owing to physical incapacity or other good cause, he is unable to furnish such support: provided, that in case of conviction for the offense aforesaid, the court before which such conviction is had may, in lieu of the penalty herein provided, accept from the person convicted a bond to the board of county commissioners of the county in which such conviction is had, with good and sufficient surety, conditioned for the support of the wife * * * for the term of six months after the date of said conviction; and the court may accept such bond at any time after such conviction, and order the release of the person so convicted.'
William T. Rogers and A. J. Rising, for plaintiff in error.
Byron L. Carr, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and George H. Thorne, Asst. Atty. Gen. (John Hipp and C. W. Stephenson, of counsel), for the People.
GABBERT J. (after stating the facts).
The first objection to the information urged is that plaintiff in error is charged with having committed the offense at an impossible date, viz. September, 1897. The information is carelessly drawn, but from the language employed, charging the time when the offense was committed, it is fairly inferable that it was at a date prior to the time when it was filed with the justice; and although it might have been successfully attacked at the proper time, by a motion on account of form or ambiguity, it is too late to raise that question after trial. Mills' Ann. St. § 1433.
It is urged that the information does not state that plaintiff in error was a resident of the state. The offense consists of the willful neglect of a husband to provide reasonable support and maintenance for his wife. In charging an offense, it is sufficient to allege the facts constituting it, and is not necessary to aver facts to show affirmatively that the person charged is one who can be prosecuted for such offense. Nonresidents are excepted from the operation of the act; but it is not necessary to negative exceptions. If plaintiff in error was a nonresident of the state, that was a matter of defense.
It is contended that the evidence failed to establish the relationship of husband and wife between plaintiff in error and the prosecuting witness. It appears, conclusively, from a certified copy of the records, that the parties were married in due form, at Golden, in this state,...
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