68 Mo. App. 39 | Mo. Ct. App. | 1896
The defendant was convicted of the offense of abandoning his wife, and sentenced ■to pay a fine of $250. He appeals and assigns for error, among other things, the exclusion by the court of legal evidence offered in his behalf.
Section 3501 of the Revised Statutes, under which the prosecution is had, provides: “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, etc.” (The italics are ours.)
In the case at bar the state gave evidence tending to show that the defendant abandoned his wife because he claimed he detected her in an act of criminal intimacy with another man, and that such claim was not well founded. The state also gave evidence tending to show that the defendant had failed to do anything for the support of his wife since the abandonment, but failed to give any evidence of his ability to support her, or as to his earnings. The abandonment occurred in December, 1895, and the prosecution was instituted on February 26, 1896.. The defendant gave evidence tending to show that the charge of infidelity made by him against his wife was true; that when he left her, he left her in possession of furniture worth $500, and that his entire earnings since the date of abandonment amounted to little over $50, out of which he had pai„d an indebtedness of $13. While the weight of the evidence on the question of infidelity was with the defendant, and the plaintiff’s case on the abandonment without cause rested on very meager evidence, we would not be justified to reverse the case on that ground, as no instructions were given or refused, and the weight of the evidence is not for our consideration.
But we are clearly of opinion that the court erred in excluding evidence offered on part of defendant and tending to show that his wife was an habitual drunkard, so as to furnish a ground for separation and divorce under the statute. The court first admitted
As we remand the cause for new trial for error in the exclusion of evidence, it is needless to determine whether the court should have granted a new trial on the ground of newly discovered evidence.
Judgment reversed and cause remanded.