267 Mo. 61 | Mo. | 1916
This cause was originally appealed to and decided by the St. Louis Court of Appeals, and certified to us for final determination because one member of that court deemed the majority opinion to be in conflict with the decision of the Kansas City Court of Appeals in the case of Marolf v. Marolf, 191 Mo. App. 239.
The ease involves the correct construction of section 4789, Revised Statutes 1909, and its application to the facts here disclosed. The substantive part of
‘ ‘ Every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drank, without any visible means of support, or shall attend or operate any gambling device or apparatus, or be engaged in practicing any trick or device to procure money or other thing of value, or shall be engaged in any unlawful calling whatever, and every able-bodied married man who shall neglect or refuse to provide for the support of his family, and every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant, and. upon conviction thereof, shall be punished by imprisonment in the county jail not less than twenty days, or by fine not less than twenty dollars, or by both such fine and imprisonment. ’ ’
The evidence tends to prove that defendant is an able-bodied man and with his wife lived at the home of his parents from April,' 1912, the time of his marriage, until the latter part of January, 1913, at which time his parents changed their residence, and defendant, thereupon made arrangements with his wife’s sister to furnish his wife, as well as his recently born child, with board, lodging and necessary care. In consideration of this, he agreed to pay the sister the sum of twenty dollars per month, the understanding being that this arrangement should continue until such time
It also appears from the record that the wife had personal property of her own amounting to something over a thousand dollars, but her brother and sister explained that this the wife gave to the sister.
The defendant also stated that his inability to procure more remunerative employment was due in part to the action of his tvife’s brother (chief witness for the State) in refusing to endorse and recommend him for certain positions when called upon to so do.
In the case at hand the evidence does not disclose that the defendant was not at all times willing and anxious to, and in point of fact, did work, and was earning such compensation as his employment and 'efforts permitted. Should he then be placed in the class denounced by this statute — the class of the vagrant and vagabond and among those who loiter around houses of ill-fame,'gambling houses, etc.? In Gallemore v. Gallemore, 115 Mo. App. l. c. 191-2, Nortoni, J., in discussing this section, said:' “Indeed, such a construction in times of commercial depression and' paralyzed industry, might prove ruinous to the peace and repose of society. Men theretofore honest, seeking employment, would be. in many instances' driven to pillage and plunder to render the support required, rather than render themselves-liable to prosecution and subject to divorce proceedings upon their failure to provide such support. No such unjust and unreasonable construction of the statute should be had or even contemplated for a moment. It therefore
The evidence also discloses that the wife had personal property of the value of more than one thousand dollars, and that she gave this to her sister. Comment on this is unnecessary, further than to observe that it only emphasizes the notion that she was not in a destitute or suffering condition, and that this prosecution is for purposes other than that contemplated by the law.
The majority opinion of the Court of Appeals in-this case is in accord with Dwyer v. Dwyer, 26 Mo. App. 647, Gallemore v. Gallemore, 115 Mo. App. 179, and State v. Burton, 171 Mo. App. 345, and we see no
The judgment of thé court of criminal correction is therefore reversed, and the defendant discharged.