40 Mo. App. 284 | Mo. Ct. App. | 1890
delivered the opinion of the court.
The defendant was arrested, tried and convicted, upon an information filed by the assistant prosecuting attorney of the St. Louis court of criminal correction. It was charged in the information that the defendant in the city of St. Louis, on or about the first day of January, 1889, did unlawfully, without good cause, abandon his wife, and did neglect, refuse and fail to provide for her,” etc. The information was drawn under section 1278 (Revised Statutes, 1879), which is as follows: “If any man shall, without good cause, abandon or desert his wife * * * and shall fail, neglect or refuse to maintain and provide for such wife, * * * he shall, upon conviction, be punished by imprisonment in the county jail not more than one year, or by a fine of not less than fifty, nor more than one thousand, dollars, or by both such fine and imprisonment,” etc. The defendant was found guilty by the court and a fine of five hundred dollars was imposed. Prom this judgment of conviction the defendant has appealed.
The information charges the offense in the language of the statute, and the supreme court in the case of State v. Davis, 70 Mo. 467, decided that an indictment under this section of the statute, which adopted its language, was sufficient. We must, therefore, hold that the information is sufficient.
There was no objection to the admission or rejection of evidence, and there were no instructions asked or given, so there is nothing to complain of on that score. The only remaining question pertains to the sufficiency of the evidence to authorize a conviction. The defendant at the close of the state’s case asked for his discharge upon the ground that the eyidence adduced was not sufficient to establish an offense under the law. The court overruled this motion and the defendant excepted. The defendant again renewed his motion at the close of the case.
If we adhere to the doctrine declared by this court in the case of State v. Greenup, 30 Mo. App. 299, the conviction in this case will have to be set aside, and the defendant discharged. In the case referred to, we held that two' elements were essential to constitute the offense of wife abandonment: First. The criminal intent to abandon without good cause. Second. The failure to provide for the wile. In discussing the requisite proof to establish these propositions the court said: “Evidence of a mere abandonment and a subsequent failure and refusal of support does not prove the criminal offense denounced by the statute. The state must further show that the defendant had not ‘ good cause ’ for the abandonment. The state must show this, although it involves the necessity of proving a negative. * * * Where proof of the negative is not from the nature of the case impossible, the general rule is, that the party sustaining the burden of proof must give some evidence
In the present case the only witness introduced by the state was the defendant’s wife. Her testimony, as preserved in the bill of exceptions, was as follows : “I am the wife of the defendant, and have been married to him over twenty years ; he abandoned me about two years and seven months ago ; he has' not given me any support or money since th§ first day of January, A. D. 1889 ; this was in the city of St. Louis and state of Missouri.”
CROSS-EXAMINATION.
“ Q. When did you leave your husband? A. When that little child (pointing to a child) was four months old.
i: Q. How old is that child now ? A. Three years.
“ Q. Why did you leave him ? A. He would not pay anything; he would not pay the rent, nor the butcher’s bill; he forced me to leave him.
“Q. Is it not a fact that you left him about ten o’clock in the morning while he was at work, and he came home to an empty house at night ? A. Yes.
“ Q. Have you not received money from your husband since you and he were separated? A. Yes, I received money from him up to the first of January, A. I). 1889, but not a cent since.”
This was all the evidence offered by the state.
The defendant testified: “ My wife left me while I was at work; I came home at night and found an empty house ; the rooms bare of furniture, nothing left but a straw mattress ; my wife and family gone, I knew not where.
“ Q. How much do you make a week ? A. Fifteen dollars.”
The defendant then introduced testimony tending to prove that he paid all his bills as they matured. This was all the evidence in the case.
Our opinion is that the court committed error' in refusing to discharge the defendant, and, as the evidence was insufficient in law to make out the offense, he is entitled to his discharge in this court. In such a case it is our duty to make such judgment as the trial court
The judgment of conviction in this case will, therefore, be reversed and set aside, and the defendant discharged. All the judges concurring, it is so ordered.