The majority opinion correctly sets forth the principles of law governing this case, as I understand them, but I do not agree with that opinion as to the admitted facts.
This case is peculiar in that the facts constituting the crime are the exact facts which would show the petitioner a fugitive from justice. Therefore, while we cannot inquire into the guilt or innocence of the petitioner, necessarily, in investigating the facts affecting his status as a fugitive, we find those same facts would constitute the crime of which he stands charged. The petitioner may be entirely innocent of the charge, but that is for the determination of the courts of Kansas.
The motion for judgment on the pleadings in this case admits every fact alleged by the petitioner, which is well pleaded. Some facts set out in the various pleadings admitted in the argument are relevant only as explaining the surroundings. The matter of the travelers' checks and the settlement in relation of them in November, 1927, only show that there was a controversy and a settlement of amounts claimed to be due to his former wife by the petitioner for the previous support of the children; amounts due up to that date. Even if the former wife had the desire to excuse the petitioner from further claim she might have for support of the children, it would not affect his responsibility for their support. For that he cannot be excused. It is a duty which he must at all events discharge.
Likewise, the fact that he was not in Kansas at the date the crime is charged to have been committed is not conclusive. As stated in the majority opinion, this was a continuing offense, and when the act charged was once conceived in the mind of the petitioner, any act in furtherance of it, or in continuation of the purpose thus formed after he left the State, would be in execution of the offense.
The reply of the petitioner filed before the motion for judgment on the pleadings contains this allegation:
"FIFTH: R.E. Gallivan further says that the said Herman Schein was not in the State of Kansas `on or about the 1st day of February, A.D. 1928,' the time the affidavit and complaint charges the offense to have been committed, but further says that prior to the first day of February, 1928, while in said State of Kansas, the said Herman Schein departed from same with the intent to abandon his children and completed the abandonment on or about the time charged in the affidavit and complaint."
This is a statement of a fact which the motion concedes to be true, that the petitioner, while in the State of Kansas, departed from the same with intent to abandon his children, and completed his abandonment on or about the time charged in the affidavit and complaint. If *Page 275 he did those acts in the commission of the crime they were the acts which constituted the man a fugitive from justice.
The allegation, "with the intent to abandon his children," is an allegation of fact properly pleaded. [31 Cyc. 57; State v. Lyle, 296 Mo. 427; State v. Welch, 311 Mo. 486.]
Therefore I dissent. Blair and Gantt, JJ., concur in these views.