The Ogden standard. [volume] (Ogden City, Utah) 1902-1910, 1909-02-11

within the age limit of the statute.
There was no evidence whatsoever In
troduced az TO the wilfulness OF the
failure, but the mere failure itself Is
all that has been shown. The de-
tendant has introduced no evidence,
but rests his case upon the claim
that the state has failed to make out
case against him. 1t Is true that
the district attorney, In behalf OF the
state, has introduced evidence tend
ing TO show that there was a demand
for carpenters in Ogden during por-
ton of the period when he is charged
with having committed the crime here
III In question, but l have gone care
fully over all The evidence introduce
ed and have been unable To discover
that there is any evidence whatSo-
ever that the defendant IS a carpen-
ter. The district attorney, in behalf
OF the state, has also introduced In
evidence a certain letter, written by
the defendant to his sister, In which
he used the following language:
/ am glad she Is not giving you
any more trouble at present ] may
write To her In few days, but 1 won't
give her my address. so If she should
happen to tell you, you Will not give
it to her, as L don't want TO have her
coming here after me- But there has
been no evidence introduced tending
TO show the person to whom this let
ter refers and it would be impossible
for the court or the jury to determine
that it referred to the defendant
Wife. even assuming that the language
used would tend to prove any wil1uI-
ness on the part of the defendant.
Finally. there is no evidence intro
duced that the defendant has any
property or means with which to sup
port his children, or that he is an
able bodied man capable of doing any
sort of work. nor Is there any evil
dence that he had an opportunity to
obtain work.
The question in this case. then, is
whether OF not the state has made out
a prima facie case by simply prov
ing the omission to provide for the
children in question, without any ev-
idence whatsoever OF the wilfulness or
such failure. 1t does not seem to the
court that it has, for the very giSt or
the crime consists, not In the mere
omission, but in the wilful omission
to perform the duty. and 1t seems TO
the court that In this sort OF an action
1t Is incumbent upon the state at least
TO introduce some testimony which
would tend to show that the failure
was wilful that Is intentional. Even
In a divorce suit, an ordinary civil
action, the burden is upon the plain
10 of ofrf aY.la q IN
provide for the wife when the action
is brought upon the ground OF wilful
neglect TO provide for her. but the abil-
ity to so provide must be shown, eth
er because of the defendant having
the means to do So or because OF him
having the ability TO earn support Tor
his wife. 1t would seem strange In
deed If, in a criminal action and
especially criminal action which is
q felony and in which the defendant
Is entitled TO the presumption OF In
nocence and must be proved guilty
beyond a reasonable doubt. that the
proof of the mere omission to provide
for his children would be sufficient to
convict a father when the proof or
such facts alone would not justify the
court granting lib Wlle ulNoiCe.
am not prepared TO say to what eX-
tent the proof of wilfulness should
go, but 1t seems to the court very
clear that this much is certain, that
at least some evidence should be In
troduced tending to show that the de-
fendant had the ability to provide, had
he so chosen. and perhaps even that
he had the opportunity to d provide.
"There are perhaps other grounds
upon which the defendant might be
entitled to a directed verdict, but 1t
Is not necessary for the court TO con-
slider them for the reason that in the
view of tho court the foregoing Is
conclusive of the matter.
Let the motion for directed YER
dict be granted"