156 Mo. App. 135 | Mo. Ct. App. | 1911
Lead Opinion
(after stating the facts).— We see no reason .for disturbing the finding and judgment of the trial court. The information is sufficient and there are no errors in the record proper. The only ground urged by appellant in his motion for a new trial being that the finding is contrary to the law and the evidence, that is the only matter of exception we can consider. [State v. Millikan, 24 Mo. App. 462.]
To authorize a conviction for wife abandonment, under the statute, it is incumbent on the-state to prove beyond a reasonable doubt that the alleged abandonment was without good cause and with criminal intent, and that defendant with such intent failed to provide for his wife. [State v. Doyle, 68 Mo. App. 219.] 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 show that the defendant had not “good cause” for the abandon
We are convinced that the prosecution has met all these requirements. The testimony adduced by the state tended to prove that defendant left his wife and home after being the recipient of kind and proper treatment only, and without any disturbing incident having occurred; that he departed upon a pretended errand; with a false pretense of an early return; that he carried with him or had secreted a large sum of money; that he was absent for a year, and during that entire period was very evidently in hiding from his wife; that he had made secret visits to the city; that when caught he had a railroad ticket and six hundred dollars in money on his person, and refused to go home. All this strongly tends to support the charge of wife abandonment without good cause and with criminal intent. And its necessary concomitant, failure with criminal intent to maintain and provide for his wife, was amply proven by the testimony for the state, that, although possessed of a large sum of money even unto the time* he was caught, and although intending to abandon her in her old age, he gave her but ten dollars, and otherwise left her, and continued to leave her, penniless and unprovided for, without means of support, the object of the mere bounty of her children.
Against the proof offered by the state, the testimony of the defendant seems pitifully inconclusive and unconvincing. At most it raised a conflict in the testimony. It was for the trier of the fact to settle whatever conflict there was. [State v. Hubbard, 201 Mo. 639, 100 S. W. 586.] It could believe or not defendant’s story. [State v. Athanas, 150 Mo. App. 588, 131 S. W. 373.] Its finding indicates it did not believe the de
The judgment is affirmed.
Dissenting Opinion
DISSENTING OPINION.
I am unable to agree to the conclusion arrived at by my learned associate in this case. On a careful consideration of all the testimony as presented by the transcript, I find no evidence which, to my mind, éven tends to show that the defendant abandoned his wife with any criminal intent, the presence of criminal intent, as said by this court in State v. Doyle, 68 Mo. App. 219, lying at the very root of these cases. Nor do I find any evidence tending to show that the so-called abandonment was with the intention not to resume cohabitation. -That is an essential fact to be proven, as held in State v. Linck, 68 Mo. App. 161. A reading and re-reading of the testimony in the case satisfies me that this old man, now nearly seventy years of age, was broken down mentally, that his nervous system was shattered, and that when he left his wife, while saying he was going to attend to business, in point of fact he went wandering over the country in search of lost health, going to sanitariums—from one health resort to another. I find no evidence justifying this conviction and I particularly find none sustaining the severity of the sentence imposed on him by the trial court, a sentence admitted by' the prosecution in their printed argument to be a “heavy punishment.” As f
