129 Minn. 389 | Minn. | 1915
Defendant was tried under the complaint of his wife charging that he wilfully and without lawful excuse failed to furnish food, clothing and shelter to herself and their two minor children. He was found guilty by the trial court of wilfully and without lawful excuse failing to support the children and appealed from: an order refusing a new trial.
We have very carefully considered the evidence, and reach the conclusion that it does not justify the conviction. This is a criminal case, and the evidence to warrant a finding of guilty should be sufficient to satisfy the trial court beyond a reasonable doubt not only that the defendant failed to furnish needed support, but that' such failure was wilful and without legal excuse. G. S. 1913, § 8667.
The wife, with-her children, one of whom was born after the defendant left, occupied the house until February, 1914, when it was sold. The price was $3,200, or $1,400 above the mortgage, which the purchaser assumed. Four hundred dollars was paid to the wife in cash and the balance of $1,000 was to be paid her in monthly instalments of $20 each. Defendant had before this time sent his wife a deed executed by him with the name of the purchaser and the consideration left in blank, expecting that his wife would send him the sale proceeds, as she had stated and written him she would do. She sent him nothing, and, either in reprisal for breach of her agreement or for reasons not disclosed, defendant instructed his father to stop the $50 per month payments, of which 12 had been made. The testimony of defendant is that this $400 remaining of the money he had left with his father was used, together with more furnished by
Defendant returned from California in August, 1914, and did not see his children until the trial of this case. There was manifestly very bad feeling between him and his wife. But what are the merits of the case as between them is quite unimportant on the question of defendant’s duty to support his children. This was clearly his duty, and, conceding that, they were in need of his support, the only defense to this prosecution is his inability to perform this duty. That such inability caused by illness is a legal excuse for the failure to furnish •support to a wife or children is not open to doubt. It is entirely clear that there wás this legal excuse, unless defendant is to be punished in this proceeding for stopping the $50 payments to his wife. If he still had this money or the power to direct its payment, it could well be said that he would have.no legal excuse for not using it in caring for his wife and children. The trouble with the case is that the evidence utterly fails to show this. There is no suggestion that defendant had this $400 or any part of it, or that his father has it for him. On the contrary, the uncontradicted testimony shows that both before and since his return from California defendant has been dependent on his father for his own support.
We think that the interests of justice demand a new trial. Defendant may then have recovered his health, or the rights and duties of the parties may have been adjudicated in the divorce action which has been begun.
Order reversed and new trial granted.