Alfred Chartz for Petitioner.
C. J. Shaffer, of the Pennsylvania bar, was heard contra.
By the Court, Talbot, C. J.:
Petitioner seeks to be discharged from arrest under a warrant issued by the governor of the State of Nevada on extradition papers from the State of Pennsylvania.
Under copies duly authenticated by the signature of the presiding judge and clerk and seal of the court, and accompanying the requisition papers, it appears that in the court of quarter sessions of the peace for the county of Allegheny, State of Pennsylvania, on November 12, 1913, an indictment was returned, charging that on the 1st day of April, 1913, the petitioner, at the county of Allegheny, did separate himself from and neglect to maintain his wife and minor child. Acting upon what is shown upon the face of these papers, and without taking testimony, the governor of this state issued his warrant for the arrest and extradition of petitioner, and it is from this arrest and extradition warrant that he seeks to be released.
1. Prior to the arrival of the extradition papers, the sheriff of Ormsby County arrested the petitioner after
receiving a copy of the indictment, which charged the desertion and nonsupport of the wife and child to have been in the year 1900. Application was made to the district court for a writ of habeas corpus. It was contended that the offense as shown by the copy of the indictment was barred by the statute of limitations, and last Friday the district court ordered the discharge of the petitioner. As the date given for the alleged offense in that copy of the indictment was evidently a clerical error, which does not appear in the copy of the indictment accompanying the extradition papers, this objection does not avail the petitioner in this proceeding, for he now seeks his discharge from the warrant of the governor, issued upon the papers containing a duly certified copy of the indictment alleging the offense to have been committed on the 1st day of April, 1913.
2. From the evidence presented for our consideration, it appears without contradiction that on the 27th day of May, 1910, the petitioner and his wife entered into a written agreement to live separate and apart from each other, and for the payment by the petitioner of $50 per month in advance, for the support of his wife and minor son, to the wife, who in addition received the rental of $20 per month or $15 per month from a dwelling house; that petitioner made the monthly payments under the agreement to and including the month of April, 1913, and that the last of these payments was made in advance for that month by check drawn by petitioner and dated April 1, 1913; that he has since failed to make the payments, but has contributed a small amount toward the support of the minor son, and that, prior to any delinquency in payments of failure to support, he left the State of Pennsylvania on the 29th day of March, 1913, and has not since returned there, and has resided in the State of Nevada since his arrival here on the 3d day of April, 1913.
The indictment was found upon the testimony of the wife of the petitioner. In her detailed sworn Statement of Circumstances of Aggravation, accompanying the requisition papers, she states, among other things,
that the petitioner separated himself from her and his child on the 1st day of April, 1910, without reasonable cause, and has since that day refused to live with or make his home with her; that on or about the 30th day of March, 1913, the petitioner closed his office in the city of Pittsburg, where he was practicing as a specialist in the treatment of the eye, ear, nose and throat for a number of years, and gave his accounts into the hands of a collection agency, and absolutely discontinued his business in the city of Pittsburg, and that ever since March 30, 1913, petitioner has wilfully neglected to maintain her and their son, and that they are wholly dependent on their earnings for adequate support, aside from the income of about $15 monthly rental from a piece of property belonging to her. In this proceeding disputed facts are not regarded as in any way controlling, and if these statements made in her affidavit may be considered as contradicting the direct evidence of the petitioner that he drew his check on the 27th day of March, 1913, dated the 1st day of April, 1913, for the payment in advance for April, according to the agreement for supporting her and the boy, which has been introduced in evidence, nevertheless the Statement of Circumstances of Aggravation accompanying the papers does not show that there was any failure on his part to keep the agreement or to support her and the son until after he left the State of Pennsylvania, while according to his testimony and under the written agreement there was no default on his part for more than a month after his departure from that state.
3. As the agreement of separation was in force, there was no abandonment of the wife. Any failure to support her or the son did not occur while petitioner was in the State of Pennsylvania.
4-6. If, as contended, we are not to consider the undisputed evidence that the petitioner was not delinquent in performing the conditions of his contract and did not fail to support his wife and child until more than a month after he left the State of ...