State v. Earnest
| Decision Date | 02 June 1942 |
| Docket Number | No. 25895.,25895. |
| Citation | 162 S.W.2d 338 |
| Parties | STATE v. EARNEST. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Court of Criminal Correction; David W. Fitzgibbon, Judge.
"Not to be reported in State Reports."
Romeo Earnest was convicted of failing, neglecting and refusing to maintain and provide for his wife, and he appeals.
Affirmed.
James P. Finnegan, Pros. Atty., of St. Louis, for appellant.
Arthur Kreisman, of St. Louis, for respondent.
This is an appeal by the defendant from a conviction and sentence of one year in the workhouse by the St. Louis Court of Criminal Correction; the charge, filed October 25, 1940, being that defendant failed, neglected and refused to maintain and provide for his wife, as required under Section 4420, R.S.1939, Mo.R.S.A. § 4420.
The defendant and his wife, Loretta Earnest, were married on April 29, 1939 and separated on or about September 15, 1940. The testimony of the wife was that at the time her husband left her she was working two days each week and was earning $2.80 a week, and that her husband was earning $23 a week; that she told her husband that she was going to have a baby and couldn't work any more, and he left her and that was why he left her; that he had not bought any food for two weeks before he left; that the rent was unpaid; that she was sick at the time; that when her husband left she had to go and ask her people for something to eat; that after he left she went to the home of her aunt where she stayed for three weeks, and then went to the home of her mother, where she had since been at the date of the trial on January 27, 1941; that while they lived together they quarreled because he didn't make enough to eat and didn't give her any money.
The husband's testimony was that for the past three and one-half months he was only working part time and his pay check averaged about $17 per week; that he and his wife quarreled often and she told him if he didn't leave she was going to and he left; that he did not know she was pregnant until after he left her; that before the separation when he cashed his check he would bring the money home and give it to his wife; that he had contributed nothing to her since the separation except $4 which was paid after this prosecution was begun.
Appellant has favored us with a brief and argument. The State is not represented before this Court. The only record brought before this Court is a certified copy of the record entries after the filing of the information, including the judgment and order granting an appeal, and what appears to be the original bill of exceptions filed in the St. Louis Court of Criminal Correction. Although there is no semblance of a compliance with Section 4146, R.S.1939, Mo.R.S.A. § 4146, requiring the certification and transmission to this Court of a full transcript of the record in the cause, including the bill of exceptions, judgment and sentence, we have carefully examined such record as is before us.
Of course, it is not our province to pass on the weight of the evidence or the credibility of the witnesses.
The purpose and legislative intent of Section 4420, R.S.1939, is more clearly comprehended when we consider some of the changes the lawmakers have made in recent years.
In 1909 the provisions of law relating to the abandonment or desertion and failure to provide for a wife, and those relating to providing necessary food, etc., to a child or children, were not only in separate sections but, as to failure to provide for, were in different words. The Laws of 1909, page 450, which were carried into the Revised Statutes of 1909, provided as to a child or children as follows:
Whereas, the provision as to wife abandonment or desertion and failure to maintain and provide for such wife was as follows:
Thus as to a child the offense was a felony and as to a wife it was a misdemeanor; and as to a child there was no mention of abandonment or desertion, but as to a wife there was, and the conjunctive "and" was used, so that the offense as to the wife was not complete without a charge and proof of both (a) abandonment or desertion, and, (b) failure, neglect or refusal to maintain and provide for such wife.
These laws remained unchanged until 1911, when Section 4495, R.S.1909, was amended so as to include both wife and child in one section (Laws 1911, page 193) to read:
This law required both the act of abandonment or desertion and the act of failure to provide, and a violation of the section was a misdemeanor.
The law then remained the same until 1921 when the present law (Section 4420, R.S.1939, Mo.R.S.A. § 4420) was enacted (Laws 1921, p. 281) as follows:
It will thus be seen that under the law since the amendment of 1921 the offenses condemned are in the disjunctive, and a violation of either offense is a misdemeanor, and the following offenses are described in the part of the section above copied: (1) If any man shall, without good cause, abandon or desert his wife; or, (2) If any man shall, without good cause, fail, neglect or refuse to maintain and provide for such wife; or, (3) If any man or woman shall, without good cause, abandon or desert his or her child or children; or, (4) If any man or woman shall, without good cause, refuse to provide the necessary food, clothing or lodging for his or her child.
The disjunctive "or" is used to differentiate between the act of abandonment or desertion, and the act of failure to provide, and, therefore, though closely related, they are separate offenses.
In the case of State v. Winterbauer, 318 Mo. 693, 300 S.W. 1071, 1072, the prosecution was under the present statute, and the charge made in the information was that the defendant, "did abandon said child and * * * did then and there * * * without good cause, fail, neglect, and refuse to maintain and provide for her * * *."
Bear in mind the Winterbauer case was a child case and not a wife...
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