Neff v. State

BESSEY, J.

On December 6, 1924, an order was made and entered by this court, dismissing this cause for want of service of notice of appeal or service or waiver of summons. A subsequent inspection of the files and dockets disclosed that service of summons was waived by the Attorney General, and that a record thereof was in *3 advertently omitted. The order of dismissal heretofore made herein is therefore set aside, and the cause is submitted and decided on the merits.

The record discloses that on June 3, 1923, the premises of Walter Neff, husband of plaintiff in error, were searched, and upon the evidence there obtained he was arrested, and subsequently convicted of illegal possession of intoxicating liquor. The day following the arrest and incarceration of Walter Neff, and in his absence, the premises were again searched. The officers said that as they approached the place they saw Mrs. Neff go hurriedly into the kitchen; that they followed her, and detected the odor-of whisky in a sink, and found a bucket there containing about a spoonful of corn whisky; that there was a pipe leading from this sink to the rear of the lot, and that they detected the odor of whisky at the end of this pipe.

Notwithstanding the recent development in the emancipation of women, a wife is still presumed to be under duress of her husband, where a crime is committed by the husband in her presence. In this case the husband had just been carried away and incarcerated in jail. The whisky the officers smelled may have belonged to him, and the wife may have had no intention of disposing of the liquor. The evidence as to Mrs. Neff is insufficient to support the verdict against her.

The judgment of the trial court is therefore reversed, and the cause remanded.

MATSON, P. J., and DOYLE, J., concur.