State v. Newberry
| Decision Date | 31 March 1869 |
| Citation | 43 Mo. 429 |
| Parties | THE STATE OF MISSOURI, Respondent, v. JOHN H. NEWBERRY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction.
T. G. C. Davis, for appellant.
I. The court below ought to have quashed the complaint on the defendant's motion, because the prosecutrix, being the wife of the defendant, was not competent to make it.
II. The conduct of the prosecutrix, as proved by the defendant's witnesses on the trial, justified or excused the act of desertion as complained of, under the act of 1867, p. 112, of the law of Missouri.
III. The statute under which the prosecution was carried on and the conviction took place should be strictly construed. The prosecutrix was not deserted by the defendant without reasonable cause and without providing for her maintenance. He left her in a far better condition than she was in before she became his wife--in the possession of a house and two lots, some personal property and cash.
Colcord & Knight, and H. B. Johnson, for respondent.
I. Agnes Newberry was competent to lodge an information against her husband, charging him with abandoning her (a charge about which no one else knew anything); and, if competent to file information, was competent to testify against him. (1 Phil. Ev. 94-5.) “It would be strange,” said Buller, J., “to permit her to be a witness to ground a prosecution, and not afterward to be a witness at the trial;” and, on the contrary, if competent to testify, she was competent to lodge the information.
II. She was the only person who could lodge an information upon which a warrant could issue; for upon an ex-officio information filed by the prosecuting attorney only a summons can issue, which would be entirely inadequate to bring a non-resident into court, and upon which no service can be had upon a non-resident and no requisition obtained for him. (Sess. Acts 1868, p. 269, § 20.)
III. To the general rule excluding the husband and wife as witnesses there are many exceptions, which are allowed from the necessity of the case--partly for the protection of the wife, and partly for the sake of public justice. Sometimes this necessity is general, as where there is no other witness to the facts; sometimes particular, as where, for instance, the wife would otherwise be exposed, without remedy, to personal loss or injury.
IV. In this case the necessity was both general and particular. There was no other witness, and without her testimony she would be remediless and public justice defeated. This case, then, comes within the reason and philosophy of all the exceptions to the general rule. The wife can testify to the fact of abandonment without cause in a suit for divorce, and why can she not testify to the same fact if the proceeding be different?
V. It is not necessary that the abandonment should have been for any specified time; but if he abandoned his wife for any length of time, and failed, neglected, or refused to provide for her, it is sufficient. (Sess. Acts 1867, p. 112, § 1.) This fact was determined by the court which tried the case, and the verdict will not be disturbed unless manifest injustice has been done.
VI. This being a new statute, untried in any of the States, and a subject to which the rules of evidence have not been applied by the courts, the importance of the question becomes obvious, and the courts are to determine whether the reasons for the exception to the general rule in other cases do or do not apply with equal force to this.
VII. This case is distinguishable from the case of The State v. David Berlin, decided at the last term of court, in this: that in that case the affidavit of the wife charged the husband with open and notorious adultery--an offense against the public, and not against her, and one which from its very nature could be established by the testimony of others; whereas this is more particularly an offense against the wife, and one which could only be established by her testimony.
These proceedings were commenced in the St. Louis Court of Criminal Correction, upon the sworn complaint of Agnes Newberry, the defendant's wife. The complaint charges that the defendant, on the 22d day of May, 1868, without good cause, abandoned his wife, the complainant, in the city of St. Louis, without providing her with the means of support. It is based on the act of 1867 (Sess. Acts 1867, p. 112), which provides that “every husband shall be deemed guilty of a misdemeanor who shall, without good cause, abandon his wife, and fail, neglect, and refuse to maintain or provide for her.”
Motions to dismiss and in arrest were made in the court below, grounded on the supposed insufficiency of the complaint, in this: that it was not sworn to and verified by a person competent to testify on the trial of its subject matter; it being insisted on the part of the defendant that the complainant, being the defendant's wife, was incompetent to testify against him.
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...v. Pennington, 124 Mo. 388, 27 S.W. 1106. The existence of the exception was recognized in Missouri in the very early case of State v. Newberry, 1869, 43 Mo. 429; and, incidentally, we note that in this early (and probably first) Missouri case the common law requirement of an assault or per......
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