Ex parte Lewis

By the Court, Sweeney, C. J.: This is an original proceeding in habeas corpus. The petition alleges that the said A. W. Lewis is held and unlawfully restrained of his liberty by the sheriff of Washoe County and one George W. Ryan, agent of the — 37 — State of Ohio. The return upon the writ shows that the petitioner is held under and by virtue of an executive warrant issued by the governor of this state upon a requisition of the governor of the State of Ohio. It is the contention of counsel for petitioner that petitioner is entitled to his release, notwithstanding such executive warrant, upon the ground that the copy of the indictment attached to and made a part of the requisition fails to state a public offense under the laws of the State of Ohio. The copy of the indictment reads as follows: "The State of Ohio, Hamilton County. The Court of Common Pleas of Hamilton County. Term of October in the year nineteen hundred and ten. Hamilton County — ss.: The grand jurors of the county of Hamilton, in the name and by the authority of the State of Ohio, upon their oaths present that Albert Lewis on the 20th day of April, in the year nineteen hundred and ten, with force and arms, at the county of Hamilton aforesaid, and from that day continually to the time of finding this indictment, being the father of Florence Lewis, a child under the age of sixteen years, to wit, five years, did unlawfully neglect and refuse to provide said child with the necessary and proper home, care, food, and clothing, said Albert Lewis being able, by reason of having means and by personal services, labor, and earnings, to provide said child with necessary and proper home, care, food, and clothing, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio. Henry Hunt, Prosecuting Attorney, Hamilton County, Ohio. ” The indictment is based upon an act of the legislature of the State of Ohio, approved April 28, 1908 (99 Ohio Laws, p. 228), the material portions of which, so far as this caséis concerned, read as follows: "The father * * * of a * * * child * * * under sixteen years of age, * * * living in this state, who, being able, either by reason of having means or by personal services, labor or earnings, shall neglect or refuse to provide such child * * * with necessary and proper home, care, food and — 38 — clothing, * * * shall, upon conviction, be deemed guilty of a felony and punished by imprisonment. * * * If the person charged shall * * * neglect or refuse to provide for such child * * * with the necessary and proper home, care, food and clothing, the offense shall be held to have been committed in any county of this state in which such child * * * may be at the time such complaint is made. The citizenship once acquired in this state of any father * * * of any * * * child living in this state shall be deemed, for all the purposes of this act, to continue until such child has arrived at the age of sixteen years, provided, said child, so long continues to live in this state. ” Counsel for the petitioner contends that the indictment is insufficient in the following respects: That it fails to establish the jurisdiction and venue of the crime sought to be charged; that it fails to allege the whereabouts of the child at the time of the alleged neglect; that it fails to allege that the so-called neglect and refusal was wilful and intentional on the part of the petitioner; 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. While it is essential that the indictment shall state facts sufficient to constitute an offense against the laws of the demanding state (In re Waterman, 29 Nev. 288, 11 L. R. A. 424), it is not essential that the indictment allege the offense with such particularity as to be free from all possible objection under the rules of construction applied by thé courts of the demanding state, providing such objections do not go to any essential material ingredient necessary to make an indictment sufficient in law to hold the prisoner. While we are of the opinion that a writ of extradition should not be issued on an indictment which is faulty in substance, yet, as to matters of form in pleading, so long as the indictment states a cause of action sufficiently, this court will not interfere with the execution of the writ of extradition when issued on such an indictment. The indictment in the present case substan — 39 — tially sets forth the crime specified in the statute; and, although the indictment seemingly is not as fully or artistically drawn as it might be in matters of minor detail, yet the objections to the defects in form of the indictment are of such a nature that they would not warrant this court in holding the indictment fatally defective and void, or to dismiss the indictment were it before us on demurrer without the right of the state to amend, should the objections interposed be considered vital. Appreciating the inconvenience and gravity of permitting the transportation of a person from one state to another on any charge, we are of the opinion that the writ of extradition should not issue where an offense is not substantially pleaded in an indictment, or where it is manifest that the indictment, upon which the requisition for a writ of extradition is demanded, if attacked in a court of proper jurisdiction in the state where the party is alleged to be a fugitive from justice, would be dismissed. (State ex rel. O’Malley v. O’Connor, 38 Minn. 243, 36 N. W. 462; Ex Parte Sheldon, 34 Ohio St. 319; People v. Brady, 56 N. Y. 182; Ex Parte Reggell, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Brown Case, 112 Mass. 409, 17 Am. Rep. 114; Davis Case, 122 Mass. 324; Church, Habeas Corpus, 477.) In State ex rel. O’Malley v. O’Connor, supra, the Supreme Court of Minnesota said: "Whether the courts of that state would put the accused on his trial for the offense upon this particular indictment or would, before trying him, require the property to be more particularly described with a view to greater protection to the accused, is not for us to decide. All we have to determine is, Does the indictment show that an offense was committed? With its sufficiency as a pleading in other respects we have no concern.” In Ex Parte Sheldon, supra, the Supreme Court of Ohio said: "It is to matters of substance, and not to matters of form, that the court will look under such circumstances. ” It seems to be a well-settled rule in the Ohio courts that — 40 — if an indictment substantially follows the language of the statute it is sufficient. (Van Valkenburg v. State, 11 Ohio, 404.) In the case of State v. Toney, 81 Ohio St. 130, 90 N. E. 142, the court said: "The test is, Has the accused party been apprised in the indictment of a charge against him so that he may know what he is expected to meet and will be required to answer?” The indictment under consideration alleges those acts of delinquency upon the part of the defendant which are essential to constitute the offense as defined by the statute, which contains no requirement as to the dependency of the child. The point which counsel for petitioner has urged most strenuously is that the indictment fails to allege that the child was within the State of Ohio or within the jurisdiction of the court finding the indictment at the time the same was returned by the grand jury. If the indictment is not as clear as it should be in this respect, we think this objection is one which ought also to be determined by demurrer and to be passed on by the court in which the indictment was found. While the venue of the crime is in the county where the child is when the complaint was made or the indictment returned (State v. Sanner, 81 Ohio St. 393, 90 N. E. 1007, 26 L. R. A. 1093), it sufficiently appears from the indictment, we think, for the purposes of this proceeding, that the minor child of the defendant named in the indictment was living in the county of Hamilton, State of Ohio, upon the return day of the indictment and for a number of days prior thereto, or else the defendant could not at the county of Hamilton have unlawfully neglected and refused to provide said child with necessary and proper home, care, food, and clothing as alleged in the indictment. The word "at” used in the indictment is equivalent to the word "in.” (Bish. Crim. Prac. 378; Blackwell v. State, 17 S. W. 1061, 30 Tex. App. 416.) It might have been a little better form if the indictment had read: "That Albert Lewis on the 20th day of April, in the year 1910, and from that day continually to the — 41 — time of finding of this indictment, in the county of Hamilton aforesaid, * * * did unlawfully neglect, ” etc. But this is the plain import and meaning of the language used. A strict requirement for particularity in pleading might require the specific allegation that the child was then and there residing in Hamilton County, but such is the natural inference from the language used, and will be deemed sufficient in a proceeding of this nature, The contention upon the part of counsel for petitioner that the indictment does not sufficiently apprise the accused of the charge against him, so that he -may know what he is expected to meet and will be required to answer, does not impress this court with much force as a ground for release from the executive warrant of the governor of this state. The petition is dismissed, and the petitioner is remanded to the custody of the sheriff: of Washoe County to be delivered to the duly authorized agent of the State of Ohio for return to that state.