123 Kan. 62 | Kan. | 1927
The opinion of the court was delivered by
This was a prosecution under the wife-desertion act, wherein the defendant, Axel Wohlfort, was convicted, the jury finding that the defendant had neglected and refused without just cause to provide for the maintenance and support of his wife, Anna F. Wohlfort. There was evidence tending to show that the Wohlforts were married in 1911 and lived together as husband and wife until December 15, 1922. They had resided for a time on thé Wohlfort farm with defendant’s family, but_ had little success in farming, and early in 1922 they moved to Chicago, 111. There they took an apartment and purchased the furniture therein with money borrowed from a sister of his wife, Anna,, for which they executed a note. He found some work there at small wages and turned over most of his earnings to his wife, in whose name the bank account was kept. In 1922 his wife became ill with an ailment of the heart, and in October of that year she underwent a gall-bladder operation which left her in a weakened condition. The hospital bill was paid out of the earnings of the defendant. In December following he left Chicago, saying he was going to Topeka to find work, and the only means that was left with her was some furniture which she afterwards sold for $155, an old automobile for which she received $157.95, and a bank deposit of $10. He did not stay long in Topeka, but soon went to his mother’s home in Scandia, where he has since remained. He wrote to his wife occasionally until March, 1923, but did not send her any money. Not hearing from him, she
It is contended, first, that the court erred in overruling the plea in bar and abatement filed by defendant, in which was set out at length the proceedings in the alimony case, including the proceedings in contempt. It is argued that the demurrer to the plea in bar conceded the facts stated to be true, and that the present prosecution is in effect putting him twice in jeopardy for the same act or offense. It is said that since the court on the civil side had assumed jurisdiction to fix the duty of a delinquent to pay money for maintenance, it would be manifestly unjust to charge him under a criminal statute for what had already been determined in the civil action. A citation for contempt on the civil side, it is said, was in effect a criminal proceeding and the judgment on the contempt proceeding is a bar to the prosecution under the desertion act.
The doctrine of former jeopardy applies only to strictly criminal prosecutions. Until a person is put upon trial before a court of competent jurisdiction upon an indictment, information or complaint, he is not in legal jeopardy. The contempt proceedings arose, as we have seen, in a civil case in which temporary alimony was allowed as well as attorneys fees, and as these orders were not complied with, proceedings in contempt were instituted to enforce compliance with the orders. As the wife was in necessitous circum
“Neither does the plaintiff make a case which entitles him to a plea of former jeopardy, or former adjudication.. The constitutional provision upon this subject applies only to charges of crime; and contempt, though proceedings for its punishment are generally spoken of as quasi criminal, is not a crime.” (p. 607.)
Another case where there was an assault upon an attorney in the view of the court, while it was in session, and there had been punishment for the contemptuous conduct, it was held that punishment of the contempt by fine or imprisonment is not a criminal proceeding, and was no bar to a prosecution for a breach of the peace committed in committing the contempt. As to the contempt the court remarked:
“This is not a criminal proceeding within the meaning of the statute. The fine and imprisonment which the court is authorized to inflict for a contempt are not intended as a punishment for a crime committed in violation of the criminal law; and punishment for the contempt is no bar to a prosecution for a breach of the peace, notwithstanding the universal maxim that no one shall be put in jeopardy twice for the same offense.” (Middlebrook v. The State, 43 Conn. 257, 267.)
It has been said:
“The public and the person injured by a crime each has a distinct although concurrent remedy, as a criminal act is both a private and public wrong, and these remedies may operate simultaneously. Recovery in a civil action does not bar a criminal prosecution, and therefore as a general rule the pendency of a civil action cannot be pleaded either in abatement or in bar.” (16 C. J. 97.)
On the general doctrine that former jeopardy applies only to criminal proceedings, see 16 C. J. 235; 8 R. C. L. 137.
There is pomplaint of the refusal to admit a record of the proceedings in the civil case and also of another case brought against the mother and sisters of defendant for alienation of the affections of defendant for his wife. The proposed evidence was not competent. It would not have aided in determining whether the defendant had just cause for deserting his wife or for neglect and refusal to provide for her support and maintenance. The defendant would have had cause to complain of the admission of the record in the civil case, which included contempt orders, if it had been received over his objection. Rulings finding that the defendant should contribute to his wife’s support might have had a prejudicial influence with the jury
Error is assigned on the admission of evidence relating to the sickness and treatment of his wife in a Concordia hospital sometime in the latter part of December, 1924. It appeared that during this time the defendant did not visit her or aid in any way in furnishing nurses or doctors, and there is complaint, too, that the court failed to strike this testimony out when it was shown that defendant had not known of that sickness. It appears, however, that defendant admitted that he knew that his wife was in the hospital and also that he did not visit her or write to her, and did not even make inquiry as to her condition, nor did he make any provision for paying the hospital expenses. The obligation of a husband to support and maintain his wife includes not only shelter, food and clothing, but also medicine, medical attendance and nursing. (State v. Waller, 90 Kan. 829,136 Pac. 215.) The evidence was admissible.
There is'a further objection to the admission in evidence of letters written by defendant’s attorney to the representatives of his wife in which it was stated that defendant was execution proof, living on the bounty of his mother, and that she had some means while he had none. Since it appeared that he directed what should be written in the letter, the objection to their admission was not good. They tended to show his attitude towards his wife and the grounds upon which he declined to furnish support.
Defendant contends that the court erred in refusing an instruction that the expression "without just cause” means without a cause upon which the ordinary man would act in like circumstances. The definition of this statutory offense was not overlooked by the court. After advising the jury as to the essential elements of the offense charged and after explaining that destitute and necessitous circumstances means under the law, “needing the necessaries of life which cover not only primitive needs, things absolutely indispensable to
“You are instructed that the term ‘just cause’ as used in the law, means any cause of sufficient import to relieve the defendant, who under the law is charged with the duty of providing for the support and maintenance of his wife, from such duty and legal obligation, such as mental incapacity or physical disability of the defendant, rendering him unable to provide for the support and maintenance of such wife; or financial conditions which the defendant has honestly, in good faith, endeavored to overcome. The term' ‘just cause’ cannot be defined with absolute accuracy, and may arise from any cause or combination of causes or circumstances, and you are to determine from the evidence in this case whether or not the defendant did or did not act with just cause in whatever he did or failed to do with relation to the offense with which he is charged in this case; and in considering such conditions and circumstances, you should consider the ability to earn a livelihood, and to determine whether the defendant did all that he could or should have done under the circumstances shown.”
The defendant has no valid grounds for complaining of the instructions refused or given. He complains also of the overruling of his motion for a new trial. It is argued that the evidence shows that the purpose of the prosecution was not brought in the interest of the state or to vindicate the law, but was actually brought to obtain property and money from defendant’s mother to which the defendant had no right. The evidence tends to show that defendant’s wife was in destitute circumstances, that he deserted her and neglected to provide for her support when he had knowledge of her circumstances, and when he could have made some provision for her. He makes no complaint of the character or reputation of his wife. His own testimony was that she was industrious and helpful when they lived together upon the farm, and further, that he knew that she was not in good health; he admitted that he had agreed to send for her when he returned to Kansas, but never did. He was shown to be a middle-aged man, able to work, but provided nothing towards the support of his wife in a period of about three years, and has resisted every attempt to make him furnish support or maintenance for her.
We find no lack of evidence in support of the verdict and judgment, and no material error is found in the rulings of the court during the trial.
The judgment is affirmed.