State v. Hobbs
| Decision Date | 11 January 1927 |
| Citation | 291 S.W. 184,220 Mo.App. 632 |
| Parties | STATE OF MISSOURI, RESPONDENT v. DEWEY HOBBS, APPELLANT. * |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Alexander & Coffer, for appellant.
(1) Overruling the demurrer to the evidence was reversible error. State v. Menkins, 266 S.W. 1004 and cases; State v. Christopher, 267 S.W. 62 and cases. (a) The information failed to charge and the proof failed to show any offense committed by defendant in Cape Girardeau Township. Section 3759, R. S. 1919. (b) No jurisdiction was acquired by the justice of the peace and none was acquired by the circuit court on appeal. State v. Taylor, 167 Mo.App. 104. (c) The proof failed to establish the ability of the defendant to render support for the children. State v Menkins, supra. (2) The court committed reversible error in permitting the introduction of evidence that Cape Girardeau City is in Cape Girardeau Township. State v. Taylor, supra. (a) The information failed to charge the offense in said Township. Section 3759, supra. State v. Alford, 142 Mo.App. 412. (b) There was no proof that defendant had ever been either actually or constructively, in said Township during the time charged in the information. State v Miller, 90 Mo. App., 131. State v. Christopher, 267 S.W. 621 and cases cited. (c) Both the State and defendant had closed the case and defendant's demurrer had been overruled and defendant had announced he would offer no evidence. The law is the measure of the court's discretion. State v. Menkins, supra, 1005. (3) The failure to rebuke the prosecuting attorney for unwarranted argument was error. Likewise the statement of the court in the presence of the jury. Kelly's Crim. L. & Pro., (3d Ed.), sec. 402; note 389 and cases; State v. Dodo, 253 S.W. 75; State v. Adams, 269 S.W. 401. (4) The giving of Instruction No. 1 was prejudicial error. (a) It did not follow the charge in the information. (b) It was not based upon the evidence as to venue. Kelly's Crim. L. & Pro. (3 Ed.), sec. 391, Note 305 and cases. (5) Instruction No. 2 had no evidence to support it, and it should not have been given. Kelly's sec. 391, Note 305 and cases; State v. Loeb, 190 S.W. 299. (6) Instruction No. 3 was an undue comment on a particular proposition, and was an implied direction to impose the maximum punishment. Kelly's, pg. 339, sec. 391, Note 304 and cases, State v. Yokum, 205, 232; State v. Meininger, 268 S.W. 71. (7) The refusal to give Instructions "B" and "C" was reversible error. Kelly's, pg. 340 sec. 392, Note 308 & cases; State v. Christopher, supra.
Frank Hines, Prosecuting Attorney, for the State.
(1) The information was not challenged by a motion to quash and no point is made against its sufficiency by defendant's counsel in their brief. It follows the language of the statute in usual form and is sufficient. Laws of Mo. 1921, pp. 281, 282. (2) In a prosecution under this statute in its present form it is not necessary to show both an abandonment by defendant of his children and a refusal to support, as either one of the two is a violation of the statute. State v. Hartman, 259 S.W. 513. (3) It is not necessary to state any venue in the body of an indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same. As the State, county and township are named in the caption or margin of the information, under the statute, it is sufficient to show jurisdiction. Sec. 3900, R. S. 1919; State v. Simon, 50 Mo. 370; State v. Dawson, 90 Mo. 149; State v. Brown, 159 Mo. 646; State v. Hunt, 190 Mo. 353; State v. Long, 209 Mo. 366; State v. McDonough, 232 Mo. 219; State v. Fields, 262 Mo. 158; State v. Taylor, 167 Mo.App. 104; Sec. 3908, R. S. 1919. (4) Defendant's counsel contend that the venue of the offense was not in Cape Girardeau township and county where the mother resided with the children, because they say it was not shown that the defendant ever resided there. But the venue of the crime does not follow the father, unless the residence of the children changes with the father. For under the very language of the statute the father may leave the State, he may still be prosecuted if he leave his children behind in this State. The evidence was not disputed that the children resided in Cape Girardeau county with their mother during the entire time covered by the information, and that she supported them. This I respectfully submit is a complete answer to the point made by defendant's counsel, that the venue of the offense was not in Cape Girardeau township of Cape Girardeau county. (5) It was within the sound discretion of the court to permit the prosecuting attorney to make the formal proof that Cape Girardeau township was in Cape Girardeau county, after the State had closed its case, as no harm could come to the defendant from this permission by the court. (6) It is not complained that the prosecuting attorney made any comments on the failure of the defendant to testify in his own behalf. The complaint is that the prosecuting attorney said to the jury, "you can look at the defendant and see that he is a big, husky fellow." Very legitimate comment and perfectly proper. The jury could see for themselves what defendant's appearance was, and whether he looked like he could earn a living for his children. That the prosecuting attorney thought that the case at bar was one which called for the maximum punishment, was in no sense improper, provided he stated that the evidence showed it, and based his statement on the evidence. There is nothing before this court to show this comment of the prosecuting officer was not based on the evidence. (7) The criticism directed at instruction No. 1, is that it is not based on the evidence as to venue and that it does not follow the charge in the information.
Defendant's counsel fail to point out wherein this instruction does not follow the charge in the information and fail to point out wherein it is not based on the evidence as to venue. Keeping in mind that the venue is stated in the caption or margin of the information, as in Cape Girardeau township, I respectfully submit this criticism is not warranted. (8) Defendant's counsel complain that Instruction No. 2 had no evidence to support it and should not have been given. Instruction No. 2 was the common instruction usually given on admissions of defendant, that he was entitled to what he said for himself, as well as the State would be entitled to anything he said against himself. It is the stereotyped instruction given where there is evidence of admissions. It was of course based on evidence offered by the State of admissions of the defendant made as to his earnings. (9) Instruction No. 3, which is criticised merely relates to the punishment and was no comment or undue comment on anything. (10) Counsel for defendant complain of the refusal of the court to give instruction B, which told the jury that unless defendant had resided in Cape Girardeau township during the time covered by the information then he could not be convicted. If the law was as set forth in instruction B, then no man could be punished under this statute unless he came and resided where his children resided. It was not error to refuse it.
This is a prosecution by information under section 3274, Revised Statutes 1919, as amended in 1921 (Session Acts 1921, p. 281). The information was filed September 9, 1925, by the prosecuting attorney of Cape Girardeau county before a justice of the peace in that county, and charged that the defendant wilfully and unlawfully and without good cause failed, neglected and refused to maintain and provide necessities for his two minor children, between August, 1924, and August, 1925, in the county of Cape Girardeau, Missouri. Defendant was convicted in the justice court and appealed to the circuit court of Cape Girardeau county, where upon a trial anew, with a jury, he was convicted and sentenced to pay a fine of one thousand dollars and to be confined for a term of six months in the county jail. From this judgment defendant appeals.
All the proof in the case was adduced by the State. The defendant stood mute. On the part of the State there is evidence tending to show that defendant and the prosecuting witness, Mamie Hobbs, were married in Stoddard county in April, 1915, where they resided during their entire married life. On March 27, 1921, they separated, and in April 13, 1922, they were divorced, and while it does not clearly appear from the record, it seems that the wife obtained the decree. The divorce proceedings were had in Stoddard county. There were two children born of the marriage, they being four and five years old respectively at the time of the divorce, and at the time of this prosecution in 1925 they were seven and eight years of age respectively. Almost immediately after the divorce, the prosecuting witness, the mother of the children, who had the care and custody of them under the divorce decree, moved to Cape Girardeau county, where she sought and obtained employment in a shoe factory. She remained there with the children from that time on continuously, except a short period of a few months when she came to St. Louis for the purpose of seeking more remunerative employment, but she soon returned to the City of Cape Girardeau, where she has remained up until the time of the trial. There she has had the children with her constantly, except for a brief period in the summer time when they were with their grandparents in Stoddard county.
The evidence is abundant and...
To continue reading
Request your trial
-
State v. Moss, 16461
...the boundaries of Missouri. He further points to State v. Winterbauer, 318 Mo. 693, 300 S.W. 1071, 1073 (1927), and State v. Hobbs, 220 Mo.App. 632, 291 S.W. 184 (1927), which held, in those criminal nonsupport cases, that venue was proper in the respective Missouri counties in which the ch......