State v. Dvoracek

• Decision Date: 21 November 1908
• Citation: 118 N.W. 399,140 Iowa 266
• Parties: STATE OF IOWA, Appellant. v. FRANK D. DVORACEK
• Court: Iowa Supreme Court

118 N.W. 399

140 Iowa 266

STATE OF IOWA, Appellant. v. FRANK D. DVORACEK

Supreme Court of Iowa, Des Moines

November 21, 1908

Appeal from Story District Court.--HON. ROBERT M. WRIGHT, Judge.

THE defendant was indicted September 3, 1907, for that he, in Story County, "did unlawfully and feloniously without good cause willfully neglect to maintain and provide for Mary Dvoracek, Hazel Dvoracek, and Roscoe Dvoracek; the said Mary Dvoracek then and there being the wife of said defendant and in a destitute condition, and the said Hazel Dvoracek and Roscoe Dvoracek then and there being the legitimate children of the said defendant, and both and each of said children being then and there under the age of sixteen years and in a destitute condition."At the commencement of the trial defendant demanded that the State be required to elect whether it would prosecute him for having neglected to maintain and provide for his wife, or for having neglected to maintain and provide for his children.This was denied, and evidence was adduced tending to show that defendant married his wife in Minnesota, October 21, 1896, and in 1900 settled in Ames, Story County, and that they with their two children born in 1898 and 1900, resided there until July 18, 1905 when the defendant deserted his family without cause and went to Ft. Dodge.After July 4, 1907, he did not furnish the wife or children clothing, shelter, or food, nor the means with which these might be obtained.They were without means, and though the wife, who was in poor health, worked, they necessarily were assisted by Story County.For two years prior to his arrest defendant had worked at Ft. Dodge as a blacksmith regularly at $ 2.25 per day, and had not been in Story County since July 1, 1907.Upon proof of the facts as recited, the court, on motion of defendant, directed a verdict in his favor, and he was discharged.The State appeals.

Reversed.

H. W. Byers, Attorney-General, and Charles W. Lyon, Assistant Attorney-General, for the State.

No appearance for appellee.

OPINION

LADD, C. J.

The offense defined in chapter 170, of the Acts of the Thirty-Second General Assembly, is purely modern and as certain as in the nature of things seems to have been desirable.The first section reads: "Every person who shall, without good cause, willfully neglect or refuse to maintain or provide for his wife, she being in a destitute condition, or who shall without good cause, abandon his or her legitimate or legally adopted child or children under the age of sixteen years, leaving such child or children in a destitute condition, or shall, without good cause, willfully neglect or refuse to provide for such child or children, they being in a destitute condition, shall be deemed guilty of desertion, and upon conviction, shall be punished by imprisonment in the penitentiary for not more than one year, or by imprisonment in the county jail for not more than six months."SeeCodeSupp. 1907, Section 4775a.Analyzing this, it becomes apparent that any one of three acts stated disjunctively may subject a person to the penalty denounced.The act of abandoning his children had been consummated prior to the taking effect of the act, and this, doubtless, accounts for the omission to charge him therewith.SeeJemmerson v. State, 80 Ga. 111(5 S.E. 131);State v. Hoon, 78 Neb. 618(111 N.W. 462).But the evidence showed conclusively that from July 4, 1907, to the 26th of that month, when he was arrested, defendant neglected to maintain or provide for his wife, and during that time neglected to provide for his children, and that the wife and children were in a destitute condition.The fact that they were unable to support themselves without the aid of the county was enough to establish their destitution.SeeInhabitants of Norridgewock v. Inhabitants of Solon, 49 Me. 385;Woods v. Perkins, 43 La.Ann. 347(9 So. 48).And the testimony of prosecutrix that she knew of no reason why defendant did not provide for herself and family, together with proof that he had been earning $ 2.25 per day the two years previous, in the absence of other evidence, was enough to have warranted the jury in finding that the neglect was without good cause.Knowledge of such good cause ordinarily is peculiarly within the keeping of the accused in such a case, and all required in behalf of the State is to make out a case from which the absence of good cause is reasonably to be inferred.The defendant then might have been convicted of the offense charged, unless it be found (1) that the indictment was bad for duplicity, or (2) that the venue was laid in the wrong county, or (3) that the act of the Legislature is so uncertain, that it should be denounced as invalid.

I.The indictment in charging the offense alleged acts, declared disjunctively in the statute, to constitute the offense conjunctively, as constituting the the crime.That this was correct pleading has been held repeatedly, the last time in State v. Des Moines U. R. Co., 137 Iowa 570.

II.Was the venue rightly laid?"The local jurisdiction of the district court is of offenses committed within the county within which it is held, and of such other cases as are or may be provided by law."Section 5154, Code.This case is not within any of the exceptions alluded to, unless it be Section 5157 of the Code, which provides that: "When a public offense is committed partly in one county and partly in another, or when the acts or effects constituting or requisite to the...