State v. Wellman

• Decision Date: 09 February 1918
• Docket Number: 21,468
• Citation: 170 P. 1052,102 Kan. 503
• Parties: THE STATE OF KANSAS, Appellee, v. WILLIAM T. WELLMAN, Appellant
• Court: Kansas Supreme Court

170 P. 1052

102 Kan. 503

THE STATE OF KANSAS, Appellee, v. WILLIAM T. WELLMAN, Appellant

No. 21,468

Supreme Court of Kansas

February 9, 1918

Decided January, 1918.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EXTRADITION--Nonsupport of Child--Absence of Accused from State--Jurisdiction of Kansas Courts. Although the federal law does not provide for the surrender by a state as a fugitive from justice of one who has violated the criminal laws of another state without having been present therein and although in the absence of state legislation no authority exists for such surrender, nevertheless, where, in the absence of any local statute, a person is surrendered by one state to another as a fugitive from justice, the fact that the accused had not been in the demanding state at the time of the alleged offense, or since then, does not deprive its courts of jurisdiction to try him therefor, nor does it show such an abuse of process as to warrant the dismissal of the case against him.

2. SAME. A person who has never been in this state may, under some circumstances, be rightfully convicted here of a violation of the statute making it a felony for a parent, without lawful excuse, to neglect or refuse to provide for the support of his children under the age of sixteen years, who are in destitute circumstances.

3. DIVORCE--Deserted Child in Kansas--Husband in Missouri--Jurisdiction of Kansas Courts. Where by the misconduct of a husband and father in another state his wife and children are compelled to leave him, and they come to Kansas, and where in an action in which personal service has been had upon him she obtains a divorce and a decree awarding her the custody of the children, and requiring him to make periodical payments for their support, he may thereafter, while in another state, be guilty of a violation of the statute referred to, by failing to provide in any way for the children, notwithstanding that they were brought into this state without his knowledge or consent.

4. CRIMINAL LAW--New Trial--Evidence Must be Produced on Motion. The provision of the civil code that, in order to preserve for review a ruling excluding evidence, the evidence must be produced at the hearing of the motion for a new trial, applies as well in criminal cases, inasmuch as the criminal code makes such a ruling, if erroneous, a ground of new trial only by the adoption of the civil procedure in relation thereto.

5. TRIAL--Statement of Trial Judge Nonprejudicial. A statement by the trial judge held not to be shown to have been prejudicial to the defendant.

6. NONSUPPORT of CHILD--Child Cared for by Others--No Defense of Parent. In a prosecution under the statute making it a criminal offense for a parent to neglect or refuse, without lawful excuse, to provide for the support of his children in destitute or necessitous circumstances, it is not a defense for a father upon whom rested the duty of providing such support to show that the necessities of the children were relieved by the interposition of others.

M. A. Gorrill, and Henry H. Asher, both of Lawrence, for the appellant.

S. M. Brewster, attorney-general, J. B. Wilson, county attorney, and J. H. Mitchell, of Lawrence, for the appellee.

OPINION

MASON, J.:

William T. Wellman appeals from a conviction on the charge of having violated the statute making it a felony for a parent, without lawful excuse, to neglect or refuse to provide for the support and maintenance of his child under the age of sixteen years, who is in destitute or necessitous circumstances.

The period within which the defendant is charged to have been guilty of such omission extended from November 10, 1916, to February 10, 1917. During that time and until after his arrest he was not in the state of Kansas, but was living in Kansas City, Mo., and his three children were with their mother--his divorced wife--in Lawrence, Kan. His arrest was made under color of the federal law respecting the interstate rendition of fugitives from justice, the governor of Kansas having made a requisition upon which the governor of Missouri issued a warrant, under which he was arrested and turned over to the Kansas officials.

1. The defendant maintains that the district court acted without jurisdiction because, not having been in this state at the time of the alleged commission of the offense charged, he was not a fugitive from justice, and therefore was not within the provisions of the federal statute referred to. In this contention, so far as relates to the regularity of the arrest, he is borne out by the authorities. The rule invoked results in the unfortunate and anomalous possibility that a murderer standing in North Carolina (for instance) may shoot and kill a man just over the line in Tennessee, and escape conviction in the former state on the ground that he had committed no crime within its jurisdiction (State, v. Hall, 114 N.C. 909, 19 S.E. 602), and avoid prosecution in the latter because, not being a fugitive from justice, he is not amenable to interstate rendition. ( State v. Hall, 115 N.C. 811, 20 S.E. 729; 11 R. C. L. 731; 3 Fed. Stat. Ann., 2d ed., 288, 289; 19 Cyc. 87.) It has been determined that in order to be regarded as a fugitive from justice within the meaning of the federal act the accused need not have left the state where the offense is alleged to have been committed, for the purpose of avoiding arrest. (19 Cyc. 87; 11 R. C. L. 732.) Inasmuch as it has been decided that a person may be treated as a fugitive from justice "no matter for what purpose or with what motive, nor under what belief" he left the demanding state ( Appleyard v. Massachusetts, 203 U.S. 222, 227, 51 L.Ed. 161, 27 S.Ct. 122), even although it was with the knowledge and consent of, and without objection by, the public prosecutor, after the dismissal of one indictment for the same offense (Bassing v. Cady, 208 U.S. 386, 52 L.Ed. 540, 28 S.Ct. 392), it would seem that by similar reasoning, and perhaps on the theory of a constructive presence in a state where a crime resulted from his act (dissenting opinion, State v. Hall, 115 N.C. 811, 820, 20 S.E. 729), it might have been held also that a person could under exceptional circumstances be regarded as a fugitive from justice even with respect to a state whose boundaries he had never physically crossed. But that is a federal question and has been decided to the contrary by the court of last resort. (Hyatt v. Corkran, 188 U.S. 691, 712, 713.)

Granting however, that the governor of Missouri was not required by the federal statute to issue a warrant for the arrest of the defendant, that there was no statutory authority for the issuance of such warrant, and that he might have been discharged upon a writ of habeas corpus if he had sought that relief before being brought into this state, it does not follow that there is any defect in the jurisdiction of the court by which he has been tried and convicted, or that he can now derive any advantage from the fact that his presence here is not due to his own consent or to any process of law valid in Missouri. No right within the protection of the federal government is invaded by the method by which the defendant's presence was procured. (Pettibone v. Nichols, 203 U.S. 192, 51 L.Ed. 148, 27 S.Ct. 111.) While the federal statue does not impose a duty upon the governor of a state to recognize a requisition for the delivery of a person who is accused of an offense committed while he was not personally within the state whose laws he is charged with breaking, there would seem to be no legal obstacle to a state's providing by statute for the surrender of a person within its jurisdiction to a state whose laws he is accused of violating while not physically within its borders, although without such legislation no authority therefor exists. (19 Cyc. 85; 11 R. C. L. 732; Innes v. Tobin, 240 U.S. 127, 60 L.Ed. 562, 36 S.Ct. 290.) But where, without such enactment, a voluntary surrender is made, the want of statutory authority for the arrest does not defeat the jurisdiction of the court before which the accused is brought. Even a forcible abduction from another state is generally regarded as not having that effect. (19 Cyc. 99; 12 L.R.A. N.S. 225; 15 L.R.A. 177.) The conclusion that the want of statutory authority to bring the defendant in this case from Missouri into Kansas does not prevent his trial and punishment after he has been lodged in custody here, as the result of his surrender by the Missouri authorities, results logically from the decision of this court in In re Flack, 88 Kan. 616, 129 P. 541. It had originally been held, in compliance with what was then believed to be the federal rule, that a person brought into this state from another by interstate rendition could not be tried here upon any other charge than that on which the process was based. (The State v. Hall, 40 Kan. 338, 19 P. 918.) After the supreme court of the United States had held that no federal right would be violated by such a course (Lascelles v. Georgia, 148 U.S. 537, 37 L.Ed. 549, 13 S.Ct. 687), the way was still open for this court to refuse to countenance the holding of the accused upon any new charge. The decision rendered, however, was that the defendant might be tried upon other charges than those on which his arrest was made, and thereby the court repudiated the theory that the right of the public to inquire into the guilt of an accused person, and to punish him if he was found to have violated its laws, depends upon the regularity of the method by which his presence in the state was brought about. Whether a state shall surrender a person within its jurisdiction who is accused of having broken the criminal laws...