Ex parte Lewis

1. EXTRADITION-PROCEEDINGS-SUEEICIENCY OE INDICTMENT. The indictment under which petitioner was sought to be extradited to Ohio to be tried was properly entitled, and alleged that the grand jurors of H. County present that petitioner on the date stated “with force and arms ‘at’ the county of I-I. aforesaid,” and thence continually to the finding of the indictment, being the father of F., a child of five years, did unlawfully neglect and refuse to provide such child with the necessary and proper home, care, etc., said petitioner being able to provide the child with a necessary proper home, etc., contrary to the form of the statute, etc., and against the peace of the state. The Ohio act of April 2S, 1908 (99 Ohio Laws, p. 228), provides that the father of a child under 16, living in the state, who, being able, etc., shall neglect or refuse to provide a necessary and proper home, care, etc., shall be guilty of a felony, and that the offense shall be held to have been committed where the child may be when complaint is made, and that citizenship acquired by the father shall continue until the child has reached 1C, if a child lives so long in the state. Petitioner claimed on habeas corpus that the indictment did not authorize his extradition for failure to allege the child’s whereabouts at the time of neglect, or that the neglect was wilful, or the dependency or destitution of the child. Held, that the indictment was not so faulty in substance, as to prevent the execution of the writ, but sufficiently alleged for that purpose that the child was in the jurisdiction of the court finding the indictment when it was returned. 2. Criminal Law — Venue—Desertion oe Child. Under the Ohio act of April 28, 1908 (99 Ohio Laws, p. 228), imposing a penalty upon a father who neglects to provide for his minor child, and providing that the offense shall be held to have been committed in any county in which the child may be when complaint is made, the venue of the offense is in the county where the child is when complaint was made or the indictment returned.

Original proceeding. Application of Albert W. Lewis for a writ of habeas corpus. The facts sufficiently appear in the opinion. The right of one state to demand of another a person accused of crime in the demanding state, is a right afforded under and by reason of the provisions of the constitution of the United States (art. 4, sec. 2), which reads as follows: "A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, upon demand of the executive authority of the state from which he fled, be delivered up to be returned to the state and jurisdiction of the crime.” The requisition must be accompanied by a copy of the indictment found, or an affidavit made before a magistrate, charging the person demanded with having committed a crime, and shall be duly certified by the governor or chief magistrate of the state or territory from which the person has fled. (U. S. Rev. Stat. 1874, sec. 5278; U. S. Comp. St. 1901, p. 3597.) "A requisition unaccompanied by such a paper is no justification for the arrest of a fugitive.” {Ex Parte Powell, 20 Fla. 806.) The process by which requisition may be carried out is laid down in the acts of Congress, as follows: "Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any other state or territory to which said person has fled, and presents a copy of an indictment found, or an affidavit made .before a magistrate of any state of territory charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from which the person so charged has fled, it shall be the duty of the chief executive of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the person may be discharged. All costs or expenses .incurred in securing or transferring such fugitive to the state or territory making said demand, shall be paid by such state or territory.” (U. S. Rev. Stat. 5278; 3 Fed. Stat. Ann. 78.) The court is not limited to the executive warrant where habeas corpus proceedings are resorted to, but may go back of the executive warrant and inquire into the sufficiency of the papers connected with the requisition, and may inquire into the indictment, and determine whether or not the indictment states facts suffcient to constitute a public offense against the law of the demanding state. {Compton v. State, 152 Ala. 68; Commonwealth v. Philadelphia Co. Prison, 69 Atl. 916; In re Waterman, 29 Nev. 288.) The court having a right to go beyond the executive warrant and inquire into the sufficiency of the indictment, it now becomes the privilege of the court to take up the indictment accompanying the requisition in this case, and examine the same to determine whether or not that indictment states facts sufficient to constitute a public offense against the laws of the State of Ohio. The statute under which this case is brought is found on page 228 of the Session Acts of 1908 of the State of Ohio, Laws of Ohio: "An act to compel parents to maintain their children.” Our position with reference to the indictment in this case is that it does not state facts sufficient to constitute a public offense against the laws of Ohio, and in viewing the indictment we hold that in order to constitute a valid indictment under the laws of Ohio, and under the statute by reason of which this indictment is brought, three things are especially requisite: (1) Affirmative declaration of jurisdictional facts. (2) Dependency and destitution of the child. (3) Wilful desertion, failure or refusal to provide on the part of the father. The indictment in this case makes no affirmative declaration as to jurisdiction or venue, in that it fails to set forth, affirmatively or otherwise, the place, either county or state, in which or at which the indictment alleges the offense to have been committed, or on any date prior thereto or subsequent thereto. It is manifest that the statute of Ohio relied upon in this case was drawn for the sole purpose of applying to and operating in behalf of dependent children residing within the State of Ohio, and not otherwise. The second section of the statute clearly sets forth the intent of the legislature which enacted the statute. "If the offense charged is abandonment or neglect or refusal to provide such child, or children or pregnant woman with the necessary and proper home, care, food and clothing, the offense shall be held to have been committed in any county in this state in which such child, or children, or pregnant woman may be at the time such complaint is made. ” (Laws of Ohio, 1908, p. 229.) In order to give any court in the State of Ohio jurisdiction of the crime charged, jurisdictional facts must appear upon the face of the indictment, and the essential jurisdictional fact in this cause of action is the place of being or residence of the dependent one at the time the offense is charged to have been committed, and the omission of affirmative declaration of jurisdictional facts is vital to an indictment for any crime. "The offense should be charged in the county in which it was actually committed.” (People v. Scott, 74 Cal. 95; 10 Ency. PI. & Pr., note 2, p. 526; Connor v. State, 29 Fla. 455.) This is such a universal and fundamental principle of criminal law that it would be encroaching upon the time of the court to present authorities in support thereof. Jurisdictional averments in an indictment are as essential as any other statement of facts constituting the elements of a valid indictment. An omission of jurisdictional facts is vital to an indictment for any crime, and much more so is this true when the statute under which the indictment is drawn specifically sets forth that the crime can only be held to have been committed in the county in which the dependent one may be residing at the time the complaint is made. In the complaint or warrant of extradition, the crime must be clearly set forth and all the facts constituting it must be stated. {In re Waterman, 29 Nev. 288.) The place where the child was, and not where the father was, at the time of making the complaint fixes the venue. (29 Cyc. 1678; Bennefield v. State, 4 S. E. 869.) Where was the child, Florence Lewis, on the date on which the indictment alleges the failure and refusal on the part of the relator, AlbertW. Lewis? Was Florence Lewis in Hamilton County, State of Ohio, on the date on which the indictment alleges failure and refusal on the part of the relator? Taking the very broad.est view of the situation, can we say from the face of the indictment that Florence Lewis was even in the State of Ohio on or about the day on which the failure and refusal is alleged to have been committed by relator? If the dependent child was not in Hamilton County on the date alleged in the indictment, could Lewis be indicted under this statute of Ohio, or could the court of common, pleas of Hamilton County have jurisdiction over the alleged failure and refusal, if the dependent child was not within Hamilton County on or about that date ? If, after carefully considering the indictment, we are compelled to answer these questions either that the indictment does not state, or that the questions must be answered in the negative, then we submit that venue is not set forth affirmatively in the indictment, and hence no jurisdiction is conferred by affirmative declarations of the indictment itself, and hence the instrument does not state facts sufficient to confer jurisdiction, or to constitute a public offense against the laws of the State of Ohio. A father can be tried only where the child lived at the time of the abandonment. (29 Cyc. 1678; Jemmerson v. State, 80 Ga. 111.) An allegation of the county wherein the crime was committed is as material in the indictment as any fact constituting the body of the offense. (State v. Chamberlain, 6 Nev. 257.) The want of an averment of an essential allegation in an indictment cannot be corrected by evidence. (State v. Thompson, 12 Nev. 144.) Under the decision in the 81st Ohio State Reports, at page 392, the rule is laid down that it makes no difference where the father was at the time the complaint is made. The essential allegation to give jurisdiction is the place of being of the child on the date alleged. The indictment in this case fails to affirmatively declare that the child, Florence Lewis, is dependent upon the father, Albert W. Lewis, for food, clothing, etc., or that she is in a destitute condition. The destitute condition of the child must be alleged and proven. {Baldwin v. State, 45 S. E. 399; Bullv. State, 6 S. E. 172.) The indictment in this case fails to state that the neglect and refusal to provide for said child was wilful or intentional on the part of. the petitioner. In every crime or public offense there must be a union or joint operation of act and intention of the party accused of the crime. A man will not be punished for his act done or performed without his will or intention, nor will he be punished for his intention without performing the act. In cases of this sort it is essential that the particular facts, showing the circumstances of an alleged desertion of an infant, should be set out in the indictment with such detail as to advise the accused of the specific offense of which he is charged. (29 Cyc. 1679; Richie v. Commonwealth, 64 S. W. 979.) Intent to leave destitute must be alleged and proven. {Dalton v. State, 44 S. E. 977.) In the construction of statutes the courts are uniform in their opinion that these statutes must, as against the defendant, be strictly construed, and that nothing not within their words will be held within their meaning; while on the other hand, in favor of defendant, the construction is liberal. (10 Ency. PI. & Pr., note 503; Ex Parte Waterman, 29 Nev. 288.) The elements of the crime as set forth in the statute are: (1) The relationship between the party accused and the child. (2) The age of the child. (3) The place of residence of the child within the State of Ohio. (4) Neglect or refusal of the parent to provide for the child, said child being within the State of Ohio. The indictment in this case fails to affirmatively declare the principal element of the crime under the laws of Ohio, to wit, the residence of the child at the time the offense is sought to be charged, and the indictment fails to set forth affirmatively either actually or constructively that the child was living in the State of Ohio at the time at which the petitioner is accused with the commission of the crime. The petitioner should be discharged because: First — The indictment fails to establish the jurisdiction and venue of the crime sought to be charged. Second — The indictment fails to state sufficient facts to constitute a crime against the laws of the State of Ohio in that it fails to allege the whereabouts of the child at the time of the alleged neglect. Third — The indictment fails to state facts sufficient to constitute an offense against the laws of Ohio in that it fails to allege that the so-called neglect and refusal was wilful or intentional on the part of the petitioner. Fourth — The indictment fails to state sufficient facts to constitute a crime against the laws of the State of Ohio in that it fails to allege the dependency of the child upon petitioner or the destitution of the child at the time of the alleged failure and refusal. Counsel for petitioner contends that the indictment found and returned by the grand jury of Hamilton County, Ohio, against said Albert W. Lewis, a copy of which, with other papers, are annexed to the requisition of the governor of Ohio, and are by him declared to be authentic, and upon which he bases and makes the request in the requisition, that the said Albert W. Lewis be arrested and delivered to the agent of the State of Ohio, does not state facts sufficient to constitute a public offense against the State of Ohio; that "each state has, through and by legislative enactment, the right to establish the form of pleadings and process to be observed in its own court, in both civil and criminal cases, subject only to the provisions of the constitution of the United States, involving the protection of life, liberty and property in all the states of the Union, and if, by the laws 'of the demanding state, every indictment is to be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the statute, prohibiting its commission and prescribing the punishment therefor, * * * a court will not on habeas corpus in the surrendering state or territory discharge the prisoner from arrest because of formal or technical defects in a duly authenticated indictment, where it thus substantially charges a crime, because the sufficiency of the indictment, as a question of technical pleading, is to be determined in the state where it was found.” (Ex Parte Sheldon, 34 Ohio St. 319; Peoples. Brady, 56 N. Y. 182; Ex Parte Reggell, 114 U. S. 642; Roberts v. Reilly, 116 U. S. 80; Church, Habeas Corpus, sec. 477.) The indictment against the petitioner, as appears from the authenticated copy thereof, annexed to the requisition of the governor of Ohio, as to form and sufficiency, is well within the rule laid down by the numerous authorities above cited, and cannot, we confidently assert, be controverted or denied, and is in the language of the statute of that state, which denounces as a criminal offense against the state the commission of the acts therein enumerated, the indictment having been found under section 1 of an act entitled "An act to compel parents to maintain their children” (Session Laws of Ohio, 1908), which section reads as follows: "The father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child or children, under sixteen years of age, or the husband of any pregnant woman, living in this state, or being able either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children or pregnant woman with necessary or proper home, care, food, and clothing, * * * shall, upon conviction, be deemed guilty of a felony. ” The case of State v. Sanner, 81 Ohio St. 383, involved the construction of the statute of Ohio, the first section of said statute quoted above. The defendant in that case was indicted by the grand jury of Allen County for refusing, failing and neglecting to provide for his minor children, under sixteen years of age, living in said county, with the necessary and proper home, care, food and clothing, he being well able to furnish the same by reason of having means, and by personal service, labor and earnings, the charging part of that indictment being identical with the language used in the indictment in question here. The defendant demurred to the indictment on the ground that it does not charge an offense, nor does it charge the defendant with the commission of a crime or misdemeanor provided for in the statutes of Ohio. The court sustained the demurrer; from this order an appeal was taken to the supreme court by the district attorney upon exceptions to the rulings of the lower court in sustaining the demurrer, and the supreme court sustained the exceptions. We submit that the reasons advanced by counsel for petitioner are entirely insufficient in law to warrant the court in ordering his discharge, and therefore respectfully ask that the prayer of his petition be denied.