State v. Weymiller
| Decision Date | 13 May 1924 |
| Docket Number | 35518 |
| Citation | 198 N.W. 780,197 Iowa 1273 |
| Parties | STATE OF IOWA, Appellee, v. LEWIS E. WEYMILLER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Allamakee District Court.--H. E. TAYLOR, Judge.
THE defendant was indicted for the crime of deserting his wife and minor child under sixteen years of age. He appeals from a conviction and sentence thereon.--Reversed.
Reversed and remanded.
Richard J. Organ and Dayton & Eaton, for appellant.
Ben J Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, and Elmer F. Pieper, County Attorney, for appellee.
Appellant and his wife were married in 1919. A daughter was born in 1920. At the time of the marriage, appellant was about nineteen years of age, and his wife about seventeen. Shortly after the marriage, the parties went to Milwaukee to live. It appears that they did not reside there long, but returned to Allamakee County, where they lived for a time with the wife's parents. It seems to have then been arranged there that appellant should attend the University of Minnesota, and that his wife and daughter should remain with the wife's parents. He entered the university in the fall of 1920. He was at home during the Christmas vacation, and once during the summer of 1921. During this period, the wife and child remained with the wife's parents, and appellant made no contribution to their support. It appears that, in October 1921, appellant was indicted for desertion and failure to support his wife and child. This indictment was subsequently dismissed, and an arrangement was entered into between the parties by which appellant was to pay $ 40 per month for the support of said dependents. Under this arrangement, appellant did thereafter contribute to the support of the wife and child, until some time in June, 1922, but has made no contribution since said time. About June 23, 1922, appellant wrote his wife a letter, the pertinent paragraphs of which we quote.
The wife replied to this letter, and, among other things, said:
She testified that she made preparations to go to Council Bluffs.
About ten days later, appellant instituted a divorce action against his wife, in Pottawattamie County, and caused notice of the same to be served on her in Allamakee County.
Appellant testified that the money he sent his wife had all been borrowed by him from his father.
It appears that the wife had no independent means and no property whatever. At the time of the trial, appellant's wife was attending school, studying stenography, and the daughter was living with the wife's parents.
I. Appellant interposed a plea in abatement, alleging that he had commenced an action for divorce against his wife in Pottawattamie County, and that his wife had appeared in said action and filed answer therein, and sought an allowance for support for herself and minor child in said case.
The court properly overruled this plea in abatement. The facts upon which the indictment was returned in Allamakee County arose before appellant commenced the divorce action in Pottawattamie County. Appellant could not, by commencing a divorce action in Pottawattamie County, deprive the district court of Allamakee County of jurisdiction to try appellant for the offense alleged to have been committed by appellant in that county.
There was no error here.
II. Appellant complains of the rulings of the court on objections to the cross-examination of appellant as a witness.
No particular rulings are urged in argument. The trial court with propriety might have restricted the cross-examination somewhat, but we do not find such abuse of discretion in this regard as requires a reversal of the case because thereof.
III. Appellant challenges Instruction No. 5, wherein the court defined the term "destitute condition." Appellant's complaint is not so much that the instruction fails to correctly state the law, as that it was not pertinent to the evidence in the case.
No instruction on the subject was requested by appellant. The instruction given was not an erroneous statement of the law applicable to the case. We cannot reverse for failure of the court to amplify it, although it were much better if this had been done. The instruction was in line with the rule recognized in State v. Weyant, 149 Iowa 457, 128 N.W. 839; State v. Conway, 182 Iowa 1236, 166 N.W. 596; State v. Manley, 197 Iowa 46, 196 N.W. 724.
IV. Instruction No. 6 is as follows:
"You are instructed that 'good cause,' as used in these instructions, does not mean a slight misunderstanding, or petty whim or quarrel, but it means a substantial cause, such as you jurors can say that, under such a condition, a man of ordinary self-respect and pride would be justified in refusing to support his wife and child while such conditions remained."
This instruction cannot be sustained. The "good cause" which will excuse a husband from performing his duty to provide for his wife must be a substantial cause resulting from the acts, declarations, and conduct of the wife. It is doubtful if any reason that would not justify a judicial separation would be such a "good cause" as would justify abandonment and non-support. State v. Stout, 139 Iowa 557, 117 N.W. 958, and cases cited therein....
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