State v. Hartman

• Decision Date: 27 February 1924
• Docket Number: No. 3439.,3439.
• Citation: 259 S.W. 513
• Parties: STATE v. HARTMAN.
• Court: Missouri Court of Appeals

259 S.W. 513

STATE v. HARTMAN.

No. 3439.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Howell County; D. P. Dorris, Judge.

Dale Hartman was convicted of having abandoned and willfully failed to support his children, and he appeals. Reversed and remanded for new trial.

M. E. Morrow, of West Plains, for appellant.

B. L. Rinehart, of West Plains, for the State.

FARRINGTON, J.

An information was filed before a justice of the peace in Howell county charging the defendant with having abandoned his two children, and that he did willfully, unlawfully, and without good cause fail, neglect, and refuse to provide the necessary food, clothing, or lodging for his said children. The charge places the time between July, 1921, to November 28, 1922. While this covers a period longer than a year the evidence all disclosed that the offense charged fell within a year from the filing of the information. The instructions place the time from the ______ day of November, 1921, to the 28th day of November, 1922. There is no contention that any change took place in defendant's attitude toward his children from July, 1921, when a divorce was granted, until down to the filing of this information, and in fact down to the day of trial. The evidence of the state showed that he was guilty within a year from the time of filing the information, and we hold he suffered no prejudicial error on account of the dates given in the information and in the instructions.

The evidence in the record impresses us as showing a clear violation of the law for which this defendant deserves substantial punishment. Two juries have passed on his case, one in the justice court and one in the circuit court, each finding him guilty and assessing his punishment at six months in jail and a $500 fine. We are loathe to interfere with the judgment appealed from, and would not do so were it not that an instruction given by the court contains manifest error. The information was brought under section 3274, Session Acts of 1921, p. 281. The charge and proof under this section must show that the child is actually in need of the necessary food, clothing, or lodging. The state does not punish if the evidence shows that the child is receiving these things irrespective of its source of supply. State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L. R. A. (N. S.) 841; State v. Tietz, 186 Mo. App. loc. cit. 690, 691, 172 S. W. 474; State v. Joe May (Mo. App.) 256 S. W. 527, by this court, not yet [officially] reported.

The information in this case is in proper form under section 3274, Session Acts 1921, p. 281, and without going into detail we find some evidence to sustain a finding that the children of defendant had at times been without necessary food and clothing. There was some evidence offered by the defendant to refute this and yet the court gave instruction No. 3, which is as follows, and is error under the cases cited:

"As explained in the foregoing instruction, it is not necessary to constitute such charge that said child or children shall by reason of such failure, neglect, or refusal to maintain or provide for them, if such failure or refusal or neglect has been shown by the evidence to your satisfaction and beyond a reasonable doubt, actually suffering or physical or material want or destitution."

The trial court evidently confused this case with the offense which is a felony charge under section 3274 as amended by the...