Kistler v. State
| Decision Date | 26 January 1921 |
| Docket Number | 23,825 |
| Citation | 129 N.E. 625,190 Ind. 149 |
| Parties | Kistler v. State of Indiana |
| Court | Indiana Supreme Court |
From Wabash Circuit Court; Nelson G. Hunter, Judge.
Prosecution by the State of Indiana against Joseph Kistler. From a judgment of conviction, the defendant appeals.
Affirmed.
D. F Brooks, for appellant.
Ele Stansbury, Attorney-General, and Remster A. Bingham, for the state.
In the Wabash Circuit Court appellant was charged by affidavit tried and convicted by a jury of unlawfully deserting his wife in violation of § 2635 Burns 1914, Acts 1913 p. 956. From a judgment committing appellant to the Indiana reformatory from one to three years and disfranchisement for three years, he appealed to this court and assigned as error the action of the trial court: (1) In overruling his motion to quash the affidavit; (2) in overruling his motion in arrest of judgment; and (3) in overruling his motion for a new trial.
Considering these errors in the order above indicated, that part of the affidavit questioned is as follows: "Leaving her without reasonable means of support or continuing support." Appellant insists that this affidavit in the particular mentioned is not sufficient for the reason that it "does not charge she was without support, only that he left her no support, nor does it charge she was without means of support and liable to become a charge upon the county or township," and therefore did not charge a public offense. The specific language of the statute now involved is "leaving her without reasonable means of support and continuing support." Thus it will be noticed that the affidavit on the point in question follows the exact language of the statute, and meets the objection successfully urged against the charge in the case of State v. Rice (1886), 106 Ind. 139, 5 N.E. 906, relied on by appellant. In that case this court held that an indictment charging the defendant with deserting his wife "without making provision for her comfortable support" did not charge a crime, because the offense as charged was "open to the inference that the wife may have been left with abundant provision for her comfortable support, although such provision was not made by the husband." The statute then in force and considered (§ 2133 R. S. 1881) read "without provision for comfortable support," and, while its wording was somewhat different from our present statute, nevertheless the principle announced in that case that "the offense should have been charged in the language of the statute" sustains the charge at bar. The law in this state is well settled that a criminal charge in the language of the statute which alone states specifically the acts constituting the offense, is sufficient. State v. New (1905), 165 Ind. 571, 76 N.E. 400; Donovan v. State (1908), 170 Ind. 123, 83 N.E. 744; Rigrish v. State (1912), 178 Ind. 470, 99 N.E. 786; Scherer v. State (1919), 188 Ind. 14, 121 N.E. 369. The affidavit in the case at bar was sufficient to withstand the motion to quash and the motion in arrest. Bass v. State (1919), 188 Ind. 21, 120 N.E. 657.
Appellant further insists that the verdict of the jury is not sustained by the evidence. Under this heading appellant claims there is no evidence tending to show that he left his wife without reasonable means of support, but, on the contrary, it shows that she was adequately supported by her father, and for that reason he is not criminally liable. No good purpose will be subserved by a lengthy statement of the evidence bearing upon this point. However, in order that a better understanding of this case may be had, we call attention to the following facts and circumstances:
Appellant and the prosecuting witness were married on May 18, 1919, and lived together as husband and wife until the evening of March 26, 1920, when, without cause so far as the evidence shows, he left for parts unknown to his wife, and did not thereafter communicate with her in any manner until after he was arrested at Vincennes and returned to Wabash, Indiana. At the time of appellant's disappearance he and his wife were living with his parents on his father's farm about six miles south of Wabash, Indiana, where, since August before, he had been engaged in farming. He owned no land, but had personal property on which, in January, 1920, he gave his father a chattel mortgage to indemnify him against loss by reason of his suretyship on certain of appellant's notes for practically the full value of all his property. On March 27, 1920, appellant caused to be printed in the Wabash Daily Times Star the following notice: His wife, at the time he left, had been pregnant for about three months and had no property whatever, except ten cents in money and her personal clothing. He left his wife at the home of his parents without saying anything to them as to where he was going, nor did he make any arrangements for any means for his wife's support. His wife testified that She then went to the home of her parents, where she remained and was living at the time of the trial. Her father and mother worked in a factory and she assisted in the housework. Appellant testified that he had $ 20 in money when he left and told no one where he was going. He went to Vincennes, obtained employment, and continued to work there until arrested and brought back to Wabash on this charge. While away he did not communicate with his wife or his parents, but on his return he sought and obtained an interview with his wife at the office of his attorney, when he proposed to give her $ 100 or $ 150 and care for the child when born if she would get a divorce and dismiss this prosecution.
With reference to the evidence, an appellate tribunal does not occupy the position of a jury, or that of the trial court. The well-settled rules of law absolutely prohibit this court from setting aside a judgment based on the verdict of a jury where there is any evidence to support such verdict. The jury in this case passed upon the evidence and found appellant guilty as charged, and the motion for a new trial brought the evidence to the attention of the trial court for review, and that court by denying the motion, in effect, said that the evidence was sufficient. The evidence is now before this court not for the purpose of weighing it, nor for the purpose of settling conflicts, but for the sole object of determining whether or not there was competent evidence before the jury to sustain the verdict, which amounts to a general finding that appellant on March 26, 1920, without cause, deserted his wife, leaving her without reasonable means of support. Upon a careful examination of the evidence, we are fully convinced that the verdict in this particular is sustained. In coming to this conclusion we are not unmindful of the construction placed upon a similar statute. State v. Langdon (1902), 159 Ind. 377, 378, 65 N.E. 1. In this connection, appellant seems to rely largely upon the evidence tending to show comfortable support of his wife by her parents, supplemented by his conditional proposal of $ 150. If the proposal tended to prove anything, it was that within a few days after the admitted desertion he was not without ability to furnish support, which he was even then unwilling to do except on condition that his wife get a divorce and dismiss this prosecution. The offense with which he was charged was committed, if at all, on March 26, 1920. State v. Langdon, supra.
The wife was not a party to this prosecution in the sense that she could, of her own volition, dismiss it. However this may be, or what may have been the object of his proposal, the offer was immaterial. The question of his guilt or innocence must be determined from the evidence pertinent to the offense as charged. In this state we are well aware of the rule that a criminal statute must be strictly construed, but we are not willing to concede the contention that in order to make a husband guilty of deserting his wife, under § 2635 supra, the state must show conclusively that she thereby became a charge upon the county or township, as seems to have been held by some courts, notably Georgia and Missouri, in passing on evidence sufficient to support a charge of desertion based upon a statute containing the words "destitute and necessitous circumstances." However, we are willing to admit that there is no fixed standard by which the law undertakes to define what shall constitute "reasonable means of support." True, as appellant insists, it may...
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