State v. Loving

• Decision Date: 20 June 1914
• Docket Number: No. 13418.,13418.
• Citation: State v. Loving, 184 Mo. App. 82, 168 S.W. 339 (Mo. App. 1914)
• Parties: STATE v. LOVING.
• Court: Missouri Court of Appeals

168 S.W. 339

184 Mo. A. 82

STATE v. LOVING.

No. 13418.

St. Louis Court of Appeals. Missouri.

June 20, 1914.

1. HUSBAND AND WIFE (§ 313)—ABANDONMENT —EVIDENCE.

In a prosecution for wife abandonment, evidence of accused's failure to resent gross insults to his wife, and that before marriage he stated that he would marry her if necessary to accomplish a certain purpose, is irrelevant.

2. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR.

In a prosecution for wife abandonment, the admission of evidence that accused failed to resent gross insults to his wife, is prejudicial.

3. CRIMINAL LAW (§ 1137)—TRIAL—WAIVER OF OBJECTIONS.

Accused does not waive his rights to object on appeal to the erroneous admission of evidence by introducing countervailing evidence, or attempting to lessen the effect of the improper evidence by cross-examination.

4. HUSBAND AND WIFE (§ 313) — WIFE ABANDONMENT—OFFENSE.

Under Rev. St. 1909, § 4495, punishing abandonment of a wife, mere abandonment and a subsequent failure to support does not show a criminal offense, and the state must prove an abandonment without good cause and a willful failure to support, and a conviction cannot be sustained where it merely appears that a husband left his wife and failed to support her.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Wallace Loving was convicted of wife abandonment, and he appeals. Reversed, and defendant discharged.

C. P. Hawkins, of Kennett, for appellant. Thos. F. Donaldson, Pros. Atty., and J. P. Tribble, Asst. Pros. Atty., both of Kennett, for the State.

ALLEN, J.

This is a prosecution under section 4495, Rev. Stat. 1909, for wife abandonment. Defendant was convicted, and his punishment assessed at a fine of $250 and imprisonment in the county jail for a period of 90 days, and he appeals.

Defendant, a young man living in Dunklin county, was married to the prosecuting witness on August 21, 1910. It appears that the marriage was kept a secret until some time early in the following October; both of the contracting parties continuing to live with their parents. They then went to the home of defendant's brother-in-law, where they remained for about a week, and from there went to live at the home of defendant's mother, where they remained until on or about December 7th of that year. On the last-mentioned date it appears that they left the home of defendant's mother, and again went to that of defendant's brother-in-law. It seems that on the following day they went to Senath, where the wife purchased some clothing, for which defendant paid, returning to the brother-in-law's home. The wife testified that defendant upon this evening, went to his mother's home and did not return until after midnight; that she was asleep when he returned, and that he woke her and asked for his "work clothes," and left without saying anything further. The wife testified that she did not again see him for some two months. They did not live together after the separation, and defendant thereafter contributed nothing to his wife's support. It is unnecessary to rehearse the testimony in detail, and only such portions thereof will be referred to as are pertinent to the matters hereinafter discussed.

We think it quite clear that prejudicial error intervened in the admission of testimony. Over the objections of defendant's counsel, the wife was permitted to testify that, during the time that she lived with defendant at his mother's home, an uncle of the defendant upon two occasions grossly insulted her, and that upon reporting the same to the defendant he merely laughed, and apparently gave the matter no further thought. This testimony was entirely irrelevant to the charge laid against defendant in the information, viz., that of wife abandonment. His treatment of his wife, and his attitude in regard to insults toward her, might be pertinent in an action for divorce, but have naught to do with the offense for which he was being tried. Such testimony, we think, was highly prejudicial, in that it tended to poison the minds of the jurors against the defendant, and constituted reversible error.

And again, over the objections of defendant's counsel, two witnesses were permitted to testify to statements made by the defendant respecting the prosecuting witness, some time before the marriage, to the effect that he intended to accomplish a certain purpose, even if he had to marry her in order to do so. This testimony likewise was not relevant to the charge of wife abandonment, and was highly prejudicial. It related to a point of time long prior to the commission of the offense with which defendant stands charged, did not tend to establish any element of such offense, and its effect could only have been to prejudice the jury against him.

But it is urged by respondent's counsel that appellant waived his objections to all of the foregoing testimony by cross-examination, and by introducing countervailing testimony. But in this counsel are in error. It is true that one cannot complain of error which he has invited. But this rule has no application "to a case where the losing party, as here, does not invite the error, but yields under protest to the theory of the trial court, and thereafter tries, as best he may, to ameliorate his plight by administering an...