Preston v. State
| Decision Date | 14 October 1921 |
| Docket Number | No. 21952.,21952. |
| Citation | 106 Neb. 848,184 N.W. 925 |
| Parties | PRESTON v. STATE. |
| Court | Nebraska Supreme Court |
Evidence examined, and held insufficient to support the verdict.
The failure of the husband to furnish his wife money for the maintenance of a two months old infant born in the home of her parents, after she had left the matrimonial domicile without cause and contrary to his wishes, is not in itself willful neglect or refusal to provide for such child within the meaning of section 8614, Rev. St. 1913.
The county in which the matrimonial home or domicile of the husband and wife is located fixes the venue of a case prosecuted under section 8614, Rev. St. 1913, and such case cannot be instituted in another county.
The husband has the right to establish the matrimonial domicile, and it is the duty of the wife to recognize that fact.
No inflexible rule can be laid down for the application of section 8614, Rev. St. 1913; each case must be decided on its own merits; the statute was enacted for a wise purpose, but is capable of abuse and of being made an instrument of intolerable oppression.
It is elementary that penal statutes are inelastic and must be strictly construed; they are never extended by implication.
Error to District Court, Otoe County; Begley, Judge.
Elmont F. Preston was convicted of abandoning and refusing to provide for his minor child, and from the judgment and a sentence to a year's imprisonment, he brings error. Reversed.D. W. Livingston, of Nebraska City, for plaintiff in error.
Clarence A. Davis, Atty. Gen., for the State.
The plaintiff in error, Elmont F. Preston, was convicted of the crime of abandoning and willfully neglecting and refusing to provide for his minor child, Robert Elmont Preston, under section 8614, Rev. St. 1913, and from a judgment of guilty on the verdict and a sentence to one year's imprisonment in the penitentiary, he has brought the case to this court for review. For convenience, the parties will remain classified as they were in the district court.
January 28, 1921, the county attorney filed a complaint in the district court for Otoe county containing two counts, the first charging that the defendant, on or about May 26, 1920, in said county, willfully and feloniously refused and neglected to support, maintain, and provide for his wife, and the second reading as follows:
“And the said Geo. H. Heinke, county attorney within and for the county and state aforesaid, for further complaint and information makes upon his oath as aforesaid, and says that on or about May 26, 1920, that Elmont F. Preston, then and there being in said county as aforesaid, and then and there being the father of Robert E. Preston, aged two months, then and there being in said county, and being a minor, did then and there without good cause unlawfully, willfully and feloniously abandon the said Robert E. Preston, his minor child, and did then and there unlawfully, and feloniously neglect to support, maintain and provide for said Robert E. Preston, his said minor child, although of sufficient ability so to do, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Nebraska.”
It does not appear when the prosecution was instituted. At the conclusion of the state's case, the court directed a verdict for the defendant on the first count, and we have to deal only with the case stated in the second. The state introduced two witnesses, May Preston, wife of the defendant, and Margaret Gaskell, her mother; while the defendant testified in his own behalf, and introduced the testimony of W. R. Holly, Louise Schnittker, and his mother, Mrs. W. J. Preston.
The pivotal facts are not in dispute and are, in substance, these: The defendant and May Gaskell were married in Kansas City, Mo., March 10, 1915, and some time thereafter, probably in 1917, moved to Kearney, Neb., where the defendant purchased and furnished a comfortable five-room house for his family, and engaged in the occupation of garageman as a means of supporting himself and wife and paying a mortgage debt upon his home. October 21, 1919, a quarrel arose between them, because, in his absence, she had purchased a rug which he insisted was unnecessary and inadvisable, inasmuch as the house was carpeted and his income limited; and, over the defendant's protest and contrary to his wishes, she left home in anger and reached her parents' home the next day. She left her work undone and the dishes unwashed on the table. She was enceinte at the time, and her child was born in Otoe county, March 6, 1920, and it was a little over two months old when, it is said, the defendant abandoned it. After the prosecuting witness left Kearney, the defendant kept the home open and continued to occupy it until some time in July, 1920. She returned in November, 1919, and remained a week or more and then went back to her parents. The defendant never lived or had a residence in Otoe county, nor was a home established there. He visited his wife and baby in March, April, and May, 1920, and on his last visit, May 19, 1920, he remained with his wife and child in the home of her parents for a few hours, at which time their differences were talked over, and it was agreed that, on account of the trouble they had had in Kearney, they could not return, and did not want to live in Nebraska City, and that the Kearney property and its contents should be sold and a residence established elsewhere; but no place was agreed upon. She testified that he said she should, in the meantime, live with her parents. “Well, we didn't expect to establish a residence here, but I was to stay here until he came after me, and this was to be my home until he came and got me. * * * Well, I was to live there with mother until he came and got me.” The defendant gave his wife $75 with which to pay expenses incident to her lying-in sickness. Pursuant to the understanding of May 19, 1920, the Kearney home and its contents were sold in July, after which the defendant went to Imperial, Neb., and for two months, probably, there there was no correspondence between them. There is no testimony...
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... ... DeWolfe, 67 Neb. 321, 93 ... N.W. 746; State v. Pielsticker, 118 Neb. 419, 225 ... N.W. 51." It is elementary that penal statutes are ... inelastic and must be strictly construed. They are never ... extended by implication." Weber v. State, 122 ... Neb. 369, 240 N.W. 429; Preston v. State, 106 Neb ... 848, 184 N.W. 925.See, also, section 29-106, Comp.St.1929 ... The foregoing Nebraska cases definitely determine the manner ... of construing the provisions of criminal statutes in this ... ... Section 28-417, Comp.St.1929, in its entirety, contains ... ...
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