117 Mo. App. 569 | Mo. Ct. App. | 1906
At the October term, 1901, of the Webster Circuit Court, the defendant was convicted on an information charging him with wife abandonment. The jury found him guilty but was unable to agree upon the punishment and the court assessed his punishment at a fine of one hundred dollars. A motion for new trial was filed and overruled. Defendant duly appealed from the judgment.
The evidence of the prosecuting witness is, in substance, that after defendant took her to his brother-in-law’s he was absent most of the time, spending his time at his father’s and in the city of Springfield, making promises, however, from time to time, that he would go to housekeeping,'but made no preparation or effort to set up a home, and finally, about six weeks after the marriage, said to his wife. “I am free and my bondsmen are free and I am going to stay away from you. You can go to your father’s. I may not be back for two months and don’t know that I will ever come back. You can go to your father’s and live there, I don’t intend to live with you and am not going to live with you. I am out of law and intend to stay out.”
Pending the indictment for the seduction, before
The evidence on the part of the State tends to show that the prosecuting witness treated the defendant with kindness and affection and was anxious to live with him and have a home of her own; that they had no personal «difficulties or quarrels and the abandonment was wholly without cause; that neither before or after the separation did the defendant contribute one farthing to the support of his wife and never recalled or modified his order to her to go to her father’s and live.
There is much countervailing evidence but what we have recited as having been adduced by the State, we think is sufficient to warrant the verdict of guilty; and the judgment should not be reversed unless prejudicial error; intervened at the trial. The defendant saved an exception to the introduction of the indictment for the seduction as evidence and the order of the court dismissing the prosecution of that indictment, for the reason the fact of the marriage was made known to the court. An indictment is not evidence of guilt and not of itself evidence of any fact, other than the one that it was presented by the grand jury. The statute creating the offense of seduction under promise of marriage (sec. 1844, R. S. 1899) provides: “If before judgment upon indictment, the defendant marry the woman seduced, it shall be a bar to any further prosecution of the offense,” ■etc., and the cause shall be dismissed at the defendant’s cost. This provision of the statute opens a way whereby a man indicted, for seducing a woman under promise of 'marriage, may, if he be so base, escape punishment for his crime by going through the form and ceremony of marriage with her while he has in his mind and heart a fixed purpose not to become her husband in fact, but to throw off his marital obligations at the first favorable opportunity and abandon her and the fruit of his crime to shift for themselves as best they can. The evidence
The bill of exceptions shows that the prosecuting attorney, in his closing argument to the jury, over the objections of the defendant, stated that the defendant had been convicted and shown to be guilty of seducing the prosecuting witness prior to the institution of the prosecution for abandonment and had pleaded with her for mercy and marriage to save Mm from the penitentiary and that the defendant had married the prosecuting witness solely for the purpose of escaping the penitentiary on the charge of seduction. The bill of exceptions does not show what ruling, if any, was made on this objection. For aught that appears in the record, the court may have rebuked the prosecuting attorney or have taken some other action withdrawing the objectionable remarks from the jury. In the absence of any showing that the court made a ruling on the objection, adverse to the defendant, it is not before us for review.
Affidavits were filed in support of the motion for
No reversible error appearing in the record, the judgment is affirmed.