Kilpatrick v. People
| Decision Date | 04 February 1917 |
| Docket Number | 8809. |
| Citation | 170 P. 956,64 Colo. 209 |
| Parties | KILPATRICK v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to Larimer County Court; Fred W. Stover, Judge.
James R. Kilpatrick, Jr., was convicted of nonsupport of his wife and child, and he brings error. Reversed and remanded.
Wm. H Dickson and Forrest I. Nicol, both of Denver, for plaintiff in error.
Leslie E. Hubbard, Atty. Gen., and Bertram B. Beshoar, Asst. Atty Gen., for the People.
The plaintiff in error, defendant below, was prosecuted under the nonsupport statute (chapter 179, Session Laws 1911). The information was filed October 7, 1915, and alleged, in substance, that on or about December 5, 1914, 'and from thence continually until the day of the date hereof,' the defendant willfully neglected, failed, and refused to provide reasonable support and maintenance for his wife and child. Upon the trial the jury rendered a general verdict of guilty.
The evidence shows that the defendant and his wife were married in Denver in March, 1911, and then moved to Craig, Routt county, where they resided and lived together until March, 1914, and where the defendant continued to reside. On or about March 26, 1914, the wife left her husband's home in Craig and came to Ft. Collins, Larimer county. She did not thereafter return to Craig, but resided in Larimer county, separate and apart from her husband, ever since.
Upon cross-examination, the wife testified that the reason she left Craig at the time she did was 'because mother was sick,' and that during the time the parties lived together her husband, the defendant, provided for her support and the support of the child. The testimony shows that on three different occasions after the separation the defendant came to Larimer county and tried to get his wife to come back with him to their home in Routt county, which she refused to do. The defendant testified that his wife at the time she left Craig to visit her mother at Ft. Collins did not say she was not coming back, and that prior to that time she never intimated that she was going to leave, and also that the first intimation he got that she was not coming back was about eight or ten days after she left, when he received a letter from her from Ft. Collins.
The trial court refused to permit the defendant to show what reason his wife at that time gave for not coming back, and also what reasons she gave for not going back to Craig when he came to Larimer county to ask her to go back home with him. The defendant was not permitted to show what he did to get his wife to return to Routt county. Counsel for the defendant sought on cross-examination of the complaining witness, the wife, to show why she never returned to Craig. Such examination proceeded but a short ways when counsel for the people objected 'on the ground that it is immaterial,' etc., and the objection was sustained by the court. Later on counsel for defendant was pursuing a line of inquiry in cross-examining the witness, and upon objection being made by the prosecution informed the court that 'the purpose of this is to show that she left the defendant without reasonable excuse.' The trial judge in sustaining the objection remarked, 'I think it is wholly immaterial as to the reasons.' The trial court also refused to permit counsel for defendant to show on cross-examination of the complaining witness that she could at any time return to Craig and have support from her husband.
In accord with its rulings on the admissibility of testimony, the court instructed the jury:
'That the question whether or not the wife was justified in leaving her husband is immaterial so far as the issues of this case are concerned.'
Assignments of error are predicated upon the foregoing instruction and upon the court's rulings on evidence above indicated.
At common law the husband is not required to contribute to the support of his wife where she without just cause refuses to live with him. 21 Cyc. 1152. Our statute provides that:
'Any man who shall willfully neglect, fail or refuse to provide reasonable support and maintenance for his wife,' etc., 'shall be deemed guilty of a felony.'
Similar language in the statutes of other states has been treated in numerous cases as not implying or adding any further obligation upon a husband in addition to that resting upon him at common law. The nonsupport statutes have been regarded only as enforcing and not as creating a duty on the part of husbands and fathers with reference to the support of wives and children. In People v. De Wolf, 133 A.D. 879, 118 N.Y.S. 75, the accused was convicted under a criminal statute declaring a person who shall neglect to provide for his wife according to his means a disorderly person, and it was held that a conviction is not sustainable where she left him without adequate excuse. In People v. Pettit, 74 N.Y. 320, it was held, under the same or a similar statute, that the husband is not guilty of neglecting to support his wife if he offers to support her if she will live with him, and she refuses because of alleged fear of personal violence without having a reasonable and substantial apprehension of violence, based upon sufficient facts. In People v. Flewellyn (Co. Ct.) 111 N.Y.S. 621, the court said:
'In the case at bar, inasmuch as the defendant is ready and willing to support her if she will go with him away from her people as the evidence shows he is, then she should go with him.'
The court then held that the evidence failed to show that the defendant was guilty under the information which included a charge that he neglected to provide for his wife. In the case of Spencer v. State, 132 Wis.
509, 112 N.W. 462, 122 Am.St.Rep. 989, 13 Ann.Cas. 969, an instruction of the trial court is quoted as follows:
An instruction quoted in Jenness v. State, 103 Wis. 553, 79 N.W. 759, reads, in part:
The foregoing quotations appear to us to state the law applicable in criminal prosecutions under our nonsupport statute.
In the case at bar the defendant was entitled to be permitted to show, and the jury to consider, whether or not he was willing and in good faith offered to support his wife at his home in Routt county during the time named in the information, and also whether or not the...
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State v. Rogers
... ... appellant, same would be a complete bar to any criminal ... prosecution, which is not the law." ... In ... Kilpatrick v. People, 1907, 64 Colo. 209, 170 P ... 956, 958, where the defendant was convicted of non-support of ... his wife, the court permitted the State ... ...
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State v. Morrow
... ... McKee, ... [75 P.2d 740] Fed.Cas.No.15,688, 4 Dill. 128; Dorrell v. State, 83 ... Ind. 357; People v. Hamberg, 84 Cal. 468, 24 P. 298, ... 300; Halbrook v. State, 34 Ark. 511, 36 Am.Rep. 17; ... State v. Ashley, 37 Ark. 403, State ... shall mention three decisions which illustrate its ... application. In Kilpatrick v. People, 64 Colo. 209, ... 170 P. 956, 959, the defendant's conviction of the crime ... of neglecting to support his wife was reversed ... ...
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State v. Rogers, 15332.
...favor of this appellant, same would be a complete bar to any criminal prosecution, which is not the law." In Kilpatrick v. People, 1907, 64 Colo. 209, 170 P. 956, 958, where the defendant was convicted of non-support of his wife, the court permitted the State to introduce an order for tempo......
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Emerick v. People
...the clerk of the district court was called as a witness and testified to such filings. This evidence was not admissible. Kilpatrick v. People, 64 Colo. 209, 170 P. 956. careful perusal of the entire record impresses us with the feeling that defendant was not tried in that atmosphere of fair......