17 Mo. App. 597 | Mo. Ct. App. | 1885
delivered the opinion of the court.
This is a prosecution, commenced before a justice of the peace, for abandonment of a wife and child, under Rev. Stat., sect. 1273. The affidavit of a private citizen was first filed charging the offense, and on this the justice-issued a warrant and caused the defendant to be brought before him. Upon this appearance, the prosecuting attorney for the county filed a formal information whereupon the prisoner was tried before a jury and found guilty. He appealed to the circuit court, wherein the prosecuting attorney, on leave, filed an amended information. There was another jury trial, which resulted in the defendant’s conviction and an assessment of his punishment at a fine of four hundred dollars, with imprisonment in the county jail for the term of twelve months.
The affidavit first filed conferred no jurisdiction on the justice, as was decided by this court on constitutional grounds in Ex. Parte Thomas, 10 Mo. App. 24. But the defendant, while in custody, pleaded “not guilty” to the information filed by the proper officer and this amounted to a waiver of any irregularity in his arrest. It is objected, however, that there was no jurisdiction,.
The testimony tended to show that the defendant and the prosecutrix were married on September 20, 1883, and that a child was born to them in a week after the marriage. The defendant admitted on the trial that this child was his. The first proper information was filed on November 20, 1884, and charged a continuous abaudonment from December 1, 1883, up to the date of the filing. The proofs tended generally to establish an abandonment to the extent charged, a.nd the defendant virtually admitted it by his conduct and declarations, except that, during the trial and a short time before it, he expressed a willingness to return to his wife and take care of her to the best of his ability. Both offers were rejected by the wife, on the ground that he had instituted divorce pro
A witness was allowed to testify, against the defendant’s objection, that, a short time before his marriage, the defendant called on him for information about the penal consequences of seduction. The witness “looked up the law and read it to him,” whereupon the defendant said “they could make him marry her, but they could not make him live with her.” The witness added: “This was the-time they were after the defendant to arrest him for seducing his wife under promise of marriage.” The general purpose of this testimony was, doubtless by coupling the previous declaration of intention with the act subsequently committed, to strengthen the-proofs of the defendant’s commission of a crime. Such a purpose may be legitimate in a large majority of criminal cases. It is particularly so when the prosecution must depend on circumstantial evidence, and a question arises about identifying the prisoner with the criminal act which is proved to have been perpetrated by some one. But in the present case there was not the least need for any such testimony. The abandonment stood admitted or abundantly proved by direct testimony, and there could be no sort of question about the defendant’s connection with the fact. If the defendant’s declarations fairly meant that he intended, without good cause, to desert a wife and child, and to refuse to maintain or provide for them,
Considering that the extreme punishment assessed .against the defendant was apparently only the natural