254 P. 317 (Kan. 1927), 27,141, State v. Wohlfort

Docket Nº:27,141
Citation:254 P. 317, 123 Kan. 62
Opinion Judge:JOHNSTON, C. J.:
Party Name:THE STATE OF KANSAS, Appellee, v. AXEL WOHLFORT, Appellant
Attorney:Park B. Pulsifer, Clyde L. Short, both of Concordia, and C. Vincent Jones, of Clay Center, for the appellant. William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, John F. McClure, county attorney, and W. D. Vance, of Belleville, for the appellee.
Case Date:March 12, 1927
Court:Supreme Court of Kansas
 
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Page 317

254 P. 317 (Kan. 1927)

123 Kan. 62

THE STATE OF KANSAS, Appellee,

v.

AXEL WOHLFORT, Appellant

No. 27,141

Supreme Court of Kansas

March 12, 1927

Decided January, 1927.

Appeal from Clay district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Former Jeopardy--Applies Only to Strictly Criminal Prosecutions. The doctrine of former jeopardy applies only to strictly criminal prosecutions, and a recovery in an action for a wrong which is both private and public in its nature is not a bar to a prosecution for the wrong which under the statute constitutes a public offense.

2. HUSBAND AND WIFE--Abandonment--Defenses--Previous Action for Alimony and Contempt. In a prosecution under the wife-desertion act it appeared that the wife had previously brought a civil action for alimony in which an order granting temporary alimony had been made, with which defendant had refused to comply. To enforce compliance with the order, defendant was adjudged by the court to be in contempt. In the prosecution of the criminal action the defendant presented a plea in bar contending that the contempt proceeding was in effect a criminal proceeding and that the judgment in that proceeding was a bar to a prosecution under the wife-desertion act. Held, that the order adjudging the defendant to be in contempt having been made was a part of a civil action, and was not a bar to a prosecution by the state for a violation of the wife-desertion act.

3. SAME -- Abandonment -- Evidence -- Record of Civil Proceedings. No error was committed in excluding the record of proceedings in the civil case.

4. SAME--Abandonment--Admissibility of Evidence. Other objections to the admission and exclusion of evidence are held to be without material error.

5. SAME--Abandonment--Instructions. The instructions refused and also those given have been examined and the rulings are held to be without error.

6. SAME--Abandonment--Sufficiency of Evidence. The evidence is deemed to be sufficient to uphold the verdict and judgment.

Park B. Pulsifer, Clyde L. Short, both of Concordia, and C. Vincent Jones, of Clay Center, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, John F. McClure, county attorney, and W. D. Vance, of Belleville, for the appellee.

OPINION

Page 318

[123 Kan. 63] JOHNSTON, C. J.:

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 the Wohlfort farm with defendant's family, but had little success in farming, and early in 1922 they moved to Chicago, Ill. 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...

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