State v. Stout

• Decision Date: 20 October 1908
• Citation: 117 N.W. 958,139 Iowa 557
• Parties: STATE v. STOUT.
• Court: Iowa Supreme Court

139 Iowa 557

117 N.W. 958

STATE

v.STOUT.

Supreme Court of Iowa.

Oct. 20, 1908.

Appeal from District Court, Cedar County; F. O. Ellison, Judge.

Prosecution for abandonment and desertion by defendant of his wife and child.There was a verdict against defendant, and he was sentenced to confinement in the reformatory at Anamosa for one year.From this sentence he appeals.Reversed and remanded.Skinner & Coe, for appellant.

H. W. Byers, Atty. Gen., and Charles W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

It was charged in the indictment that defendant on or about the 2d day of June, 1907, in Cedar county, then and there being the lawfully wedded husband of Elsa Stout and the father of and having a minor child of the age of about one year, unlawfully and without cause did willfully neglect and refuse to maintain and provide for his said wife, she being in a destitute condition, and without good cause did willfully abandon his said child which was his legitimate child under the age of 16 years of age, leaving such child in a destitute condition, and without good cause did willfully neglect and refuse to provide for his minor child under 16 years of age, said minor child being then in a destitute condition.The offense was thus charged to bring it within the terms of chapter 170, p. 171, Acts32d Gen. Assem. (CodeSupp. 1907, §§ 4775a-4775f).

1.Many errors are urged with reference to the allegation and proof as to time; but the only complaint in this respect which seems to us material is that in the indictment the neglect or refusal to maintain or provide for the wife is charged as of one specific date, and not as a continuous offense.It is evident that, while the abandonment of the child might under the statute have consisted of one specific act, the neglect or refusal to maintain or provide for the wife or child is in its nature a continuous wrong which should properly be charged in that form.We are not inclined to hold, however, that for this reason the indictment is fatally defective, and that the charge as to neglect and refusal to maintain and provide for should not have been submitted to the jury.Under our liberal statutory provisions as to sufficiency of indictments and materiality of allegations as to time, we think it may very well be held that an allegation that on or about a date named the defendant did neglect and refuse as charged would be sufficient.The evidence as to the length of time during which defendant thus neglected and refused would go to the jury, under proper instructions, for the purpose of enabling the jury to determine whether there was in fact such a continuous act of neglecting and refusing to maintain and provide for as contemplated by the statute.State v. Hoon(Neb.)111 N. W. 462.

2.Over defendant's objection, the prosecutionwas allowed to introduce in evidence the record of defendant's arrest on preliminary information for the seduction of Elsa Behrend, who as his wife now prosecutes the charge of desertion, such prosecution for seduction having been commenced and the arrest thereunder having been made before the marriage of the prosecutrix to the defendant.The record entry introduced in evidence also shows that after continuance of the hearing at the request of defendant, the parties were married, and the prosecution was dismissed by order of the county attorney.This evidence was properly admitted.Although the statute on which the present prosecution is founded has no specific reference to the desertion of the wife by the husband where he has married her to escape a prosecution for seduction, that offense being covered by the provisions of Code, § 4764, nevertheless the fact that defendant was not married to prosecutrix until after proceedings had been commenced to punish him for seducing her would certainly tend to show a relationship between them which defendant would be likely to wish to terminate.We think that, as bearing upon defendant's intent in leaving his wife, the history of the marriage and the circumstances under which it was consummated were relevant to the issue as to criminal abandonment.State v. Jeffries, 117 Mo. App. 569, 92 S. W. 501.

3.The complaint made as to one of the instructions, that it authorized conviction for abandonment of the child without proof of a continuing neglect and refusal to support, is without foundation.The statute describes three different criminal acts--the neglect or refusal to maintain or provide...