Havlicek v. State

Morrissey, C. J.

Defendant prosecutes error from a judgment of tbe district court for Douglas county, wherein he was sentenced to a term of one year in the penitentiary for wife abandonment.

A complaint was filed before the county judge September 28, 1915. Hearing was continued with the consent of defendant, until November 17, 1915. Thereafter it was continued from time to time without his consent until June, 1916, when a hearing was had, and defendant held for trial in the district court. Upon being arraigned in the district court he filed a special appearance objecting to the jurisdiction of the court. The special appearance was overruled, and a plea of not guilty entered. The point is made that the examining magistrate had lost jurisdiction, and that no preliminary hearing had been accorded defendant. But we are not called upon to determine the question. It was not properly presented by the special appearance. In *784 White v. State, 28 Neb. 341 , it was held that a. district court had no jurisdiction to try an accused person until a preliminary examination had been held according to law. But this holding is expressly overruled in Coffield v. State, 44 Neb. 417 . The court had jurisdiction. The special appearance was properly overruled. No motion to quash or plea in abatement was filed, and all defects were waived by pleading to the general issue.

It is next urged that the trial court erred in the admission of evidence. Defendant took Ms departure from Omaha, where he and his wife resided, July 30, 1913, and the information alleged the abandonment as of that date. On the trial letters written by defendant to his wife after his departure were introduced in evidence.- After she had testified to the receipt of the letters, she was asked if he had obtained a divorce from her. Objection was made to that testimony as incompetent, immaterial and irrelevant. The objection was overruled, and she answered in the affirmative. She was next asked as to the date when she received this information, and, over the same objection, was permitted to answer. The inquiry being further pressed, the trial court interrupted and remarked that the state could not prove a divorce by hearsay testimony. Prom the form of the objections and the argument contained in the brief it is clear that counsel did not object to the questions the witness was permitted to answer because they called for hearsay testimony or because her statement was not the best evidence, but objected on the theory that proof "of what defendant' did after the date fixed in the information was incompetent. In overruling the objection the trial court was, as he supposed, holding that proof of divorce was competent, and in this he was clearly right.

It is the duty of counsel to make his objections so specific that the court may understand the point intended to be raised, and, unless prejudicially erroneous on the point presented, the admission of the evidence to which objection is offered will not be held prejudicially erroneous for some reason which counsel did not suggest at the trial.

*785 “Unless the objection to offered evidence be sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom in the court of appeal.” 5 Jones, Commentaries on Law of Evidence, sec. 898.

It is said in defendant’s brief “the only question is: Was the testimony prejudicial?” Without undertaking to review the testimony at length or set out defendant’s letters, which are copied in the bill of exceptions, we will say that his general course of conduct was such that but one conclusion could be reached, and that was the conclusion reached by the jury. The reference to the divorce could add little or nothing to the proof furnished in his own handwriting.

It is argued that, in order to sustain a conviction, the state must prove that the accused is possessed of means available for the support of his wife, or, if he has no such means, he has at least some earning capacity, and is refusing, without good cause, to maintain or provide for her. This is the rule laid down in Goddard v. State, 73 Neb. 739 , and we adhere thereto; but the record does show affirmatively that prior to his abandonment of his wife he was earning $185 a month; that he went away and left her with only $25 and some household furniture, the value of which is not shown, and that he absented himself for more than two years without contributing anything to her support. He did not testify in his own behalf, and no justification or excuse for his conduct is given. It is argued, however, that from his letters, which were offered by the state, it may be inferred that he was without employment, but no attempt is made to show that he might not have returned to his wife and continued at his usual employment. A husband may not leave his wife dependent upon her own efforts for support while he takes a two-year jaunt about the country, and then justify his failure to contribute to her support by saying that he has been without employment. Where it appears that prior to his going he had *786 ' steady employment, and no satisfactory reason is given for bis quitting bis work and going away, tbe state is not required to offer proof that be bad means, or that be was drawing a salary after his departure. His lack of means, or failure to secure employment, is matter for bis defense.

The court imposed tbe maximum sentence of one year’s confinement in tbe penitentiary, and we are asked, in case of affirmance of tbe judgment, to exercise tbe power granted under section 9179, Rev. St. 1913, and reduce tbe sentence. Tbe power to reduce tbe penalty is given to this court when, in its opinion, the sentence imposed is excessive. Further than a mere statement that tbe penalty imposed is tbe maximum, that tbe defendant anl bis wife were without children, and that she was able to support herself, no reason is assigned for making a reduction of tbe sentence. No palliating circumstances are shown, or atonement promised, and be will not be beard to complain that tbe maximum penalty has been imposed.

Affirmed.

Letton and Sedgwick, JJ., not sitting.