Citation Numbers: 189 Iowa 1233
Judges: Arthur, Ladd, Stevens, Weaver
Filed Date: 11/1/1920
Status: Precedential
Modified Date: 7/24/2022
On the trial,, the State produced evidence tending to show that, on September 7, 1916, information was filed in
“I will never marry her nor live with her. The only thing I will do, I will take her to Ottumwa to a doctor, and she would be operated on.”
He did take her to Ottumwa, the evening of the day that he said he would take her, but he was arrested on the seduction charge that same evening, immediately upon their arrival in Ottumwa.. In about a week after his arrest, and near the time set for his preliminary hearing on the seduction charge, he again went to the Burrows home, where Lottie and her mother were, and talked about marrying Lottie, and called several times and-talked about the same subject, and finally brought his lawyer with him, and secured the written consent of the parents to the marriage, —Lottie being under 38, — and the marriage took place on September 18, 3910. After the marriage,, they lived about two weeks with Lottie’s parents, and then, they went to Luray, Missouri, and ran a small restaurant, for about six weeks. Then he told her that the restaurant was no.t paying, and that, he had a buyer for it and would sell, and for her to go and stay with her folks, until he sold the restaurant, and that he would get a position in Iowa, and
The record is silent as to whether or not defendant remained in Davis County from about November 21, 1916, when prosecutrix saw him in Milton, until his arrest in Milton, on February 18, 1917. Jinkens escaped from the sheriff, and was not found until January, 1918, when he was arrested as a fugitive in Denver, Colorado, and returned to Davis Coiinty, Iowa.
When the State had submitted the foregoing facts and rested, the court, on motion of the defendant, directed a verdict in his favor, and he was discharged.
The offense charged is defined in Section 4761 of the. Code, and reads:
“Every man who shall many any ivoman for the purpose of escaping prosecution for seduction,, and shall after-u-ards desert her without good cause, shall be deemed guilty of a misdemeanor and shall be punished accordingly.”
There is no question but that the facts disclosed by the evidence establish conclusively that defendant married prosecutrix to escape prosecution on the charge of seduc-. tion then pending against him. It is evident that he did not enter the marriage ceremony in good faith. He re
We think it may be said, from the evidence, that defendant did desert his wife, and that such desertion was without good cause, and in pursuance of a purpose and design to desert her, formed at the time of the marriage. Anyway, it cannot be said, as a matter of law, that he did not so desert her.
Now, where did the desertion occur? The first two weeks after the marriage, defendant and his wife lived at the home of her parents; lived there until he found some place to engage in business, — not an unusual occurrence.
Then they went to Luray, Missouri,- and conducted a restaurant. Both worked in the restaurant, and lived in rented rooms.' That way of working and living continued about six weeks, and then defendant told his wife that' their restaurant business was not paying; and that he would sell it; and that they would return to Iowa; and for her to go to her folks and remain with them until he could close out the business; and that he would join her, and find employment in Iowa; and that he would come and get her; that he thought he would find a place in Keokuk to work; and that they would go there to live. They agreed to that arrangement; she did what he asked her to do, went to the home of her parents, and awaited his coming. In pursuance of such arrangement, he furnished her trans
We think the evidexxce would have supported a finding by the jury that the desertion took place in Davis County, after defendant came oxxt- of Missotxx’i up to Milton, as he agreed with his wife to do., and then and there failed to take hex* to him, and neglected and refused, by his acts of omission, to maintain or provide for his wife.
If material, it was a question of fact for the jury to say whether defendant gained a x*esidence ixx Missouri, or remained a resident of Iowa, and was only in Missouri temporarily. The evidexxce, we think, woxxld have sufficiently supported a finding by the jury that defendant did not intend to permanently leave Davis County, aixd did not intend, in good faith, to take up a residence in Luray, Missouri, and make a home there for himself aixd wife, and that he remained a resident of Davis County, Iowa. However, we do not think the venue necessarily depends on whether he gained a residence in Missoxxri or not.. Defendant and his wife had agreed xxpon returning to Davis County, a.nd she did return, and he followed, as they had agreed; but, xvhen he arrived in Davis County, he failed and
“The venue is in the county tvbere the duty of providing for the wife and children should be discharged.”
The case should have gone to the jury, and the jury should have been permitted to find whether the venue was laid, together with other material matters in the submission of the case.
The defendant has been discharged, and cannot again be brought to trial under this indictment. Our duty ends with this disapproval of the court’s ruling. — Reversed.