
    William Sweetman v. State.
    
      (September 26, 1929.)
    Rice, J., sitting.
    
      Charles F. Richards, Deputy Attorney-General, for the State.
    
      William Prickett for the defendant.
    Court of General Sessions for New Castle County.
   Rice, J.,

in directing the jury to find a verdict of not guilty, as requested by the defendant, said:

The motion, on behalf of Sweetman, is based on the fact that the State has failed to prove venue as set forth in Section 3042, of the Revised Code of 1915, which provides:

“An offense under Sections 2 to 14, inclusive, of this Chapter, shall be held to have been committed in any County in which such wife, child or children may be at the time such complaint is made. It shall be the duty of the State, in any case in which application is properly made by the officers responsible for the execution of the law, to provide the funds necessary for the extraditing of any person charged with an offense under said sections who has gone to another State.”

There is no evidence before the court to prove that the children, for whose support the defendant is charged with the failure to provide, were in this County at the time the complaint was made in the court below. In fact, the Attorney-General admitted that he could not prove that they resided here at that time and it clearly appears from the evidence that they then resided in Pennsylvania.

The statutory words “shall be held to have been committed in any County in which such wife, child or children may be at the time such complaint was made” cannot be construed to include persons who are only transients or mere visitors in this state at the time such complaint was made; nor was it the intention of the legislature to exclude from the benefits of the statute, a wife, or child, or children who, while actually residing in this state, were only temporarily absent at the time of the complaint.

However, the words of the statute cannot readily be construed to include persons who were neither in the state when the complaint was made, nor residing here at the time, which appears to be the situation in the present case.

For the reasons stated, you are directed to return a verdict of not guilty. 
      
      See State v. McCullough, 1 Penn. 274, 40 A. 237.
     