State v. Roseberry

• Decision Date: 08 November 1955
• Docket Number: No. 7440,7440
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Dale ROSEBERRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 652

283 S.W.2d 652

STATE of Missouri, Plaintiff-Respondent, v. Dale ROSEBERRY, Defendant-Appellant.

No. 7440.

Springfield Court of Appeals, Missouri.

Nov. 8, 1955.

Ronald J. Fuller, Rolla, for defendant-appellant.

Jay White, Rolla, for plaintiff-respondent.

STONE, Judge.

Defendant appeals from the judgment and sentence entered upon the jury verdict which found him guilty of failing, neglecting and refusing to provide adequate food, clothing, lodging and medical attention for his wife, Velma Lee Roseberry [Section 559.350, as amended Laws of 1953, p. 424], and which assessed his punishment at imprisonment in the county jail for 90 days and a fine of $250. (All statutory references herein are to RSMo 1949, V.A.M.S.)

Defendant's primary complaints are that the trial court erred in denial of his motions for judgment of acquittal filed at the close of the state's case-in-chief and at the close of all of the evidence. Although the language of 42 V.A.M.S. Rule 26.10 of the Rules of Criminal Procedure as originally adopted, effective January 1, 1953, afforded some basis for argument to the contrary, it is clear that our Supreme Court did not intend thereby to abrogate or change the long-established principle that a defendant, who does not stand on his motion at the close of the state's case but offers evidence in defense, waives any error in refusal of that motion. State v. Bledsoe, Mo., 254 S.W.2d 618, 622(6). See also cases collated in Vol. 9A, West's Missouri Digest, Criminal Law, k901. For, the Supreme Court has clarified the meaning of Rule 26.10 by amendment of the last sentence thereof so that, as amended, that sentence now reads, 'If a defendant's motion for judgment of acquittal at the close of the state's case-in-chief is not granted the defendant may offer evidence without having reserved the right.' Thus, we rule that, in the instant case, defendant waived any alleged error in refusal of his motion at the close of the state's case when he offered evidence in his own defense.

Defendant, a young man whose exact age is not shown, married Velma Lee Gibson, nineteen years of age, on July 21, 1953. The couple began their married life in a three-room furnished apartment in St. Louis, where defendant was employed as a fireman by the Terminal Railroad Association, earning $425 to $450 per month. When defendant was laid off temporarily in November, 1953, his wife (to whom a child had been born in the meantime) was taken to the home of her parents near Edgar Springs in Phelps County, Missouri. Velma's testimony was that she visited with her parents only three days before returning to St. Louis, and that she lived with defendant until he, again laid off temporarily, took her and the child back to her parental home on January 10, 1954. According to Velma, defendant then 'promised to come back in two weeks and get me' but never returned for her thereafter. Defendant, denying paternity of a second child born on October 9, 1954, asserted that he had not lived with his wife after she went home in November, 1953, and that, 'if she wasn't at home * * * I don't know where she was' after that time.

The state's evidence showed that defendant, who had relatives in that vicinity, was in Edgar Springs 'about every two weeks' after January 10, 1954. Defendant thought that he had been there 'probably once a month.' In any event, he admittedly never sought to contact his wife on any of those trips. In the period of about six months from January 10, 1954, to the filing of the information in this case on July 9, 1954, Velma saw defendant twice. On the first occasion during March, 1954, when she was at a theatre in Edgar Springs with her parents, she told defendant that she 'had to have some money' and asked him 'if he was going to come back and get me and take me back to St. Louis.' Defendant gave her $10, told her that 'there was no place for us to live' in St. Louis, and 'sent me (Velma) back home.' On the second occasion which was at a 'private hearing' in Rolla during June, 1954, defendant promised that 'he would send me (Velma) $40 a month' and also that 'he would * * * come back in three days and get me and support me,' but 'he never came back and I never received any money.' Velma insisted that the $10 obtained in March, 1954, was 'the only support' she had received from defendant after January 10, 1954. Her husband testified that he had given her another $10 'in June' and undertook to excuse his conceded failure to make any further contribution toward her support because 'I didn't have any more.' However, defendant admitted upon trial that, although working 'on the extra board' only three or four days each week, he had 'averaged around $50 a week' after January, 1954. Notwithstanding the fact that he already owned a 1948 Chevrolet automobile 'in running condition,' defendant paid $30 for a used motorcycle in February, 1954; and, when 'some boys wrecked it,' 'I give the old motorcycle and $500' for another one. Actually, defendant had paid $40 per month on his automobile and $65 per month on his motorcycle.

As defendant here emphasizes, in a prosecution under Section 559.350 for the alleged failure of a husband to support his wife, the state must prove every constituent element of the offense [State v. Miller, Mo.App., 33 S.W.2d 1063, 1064(2); State v. Young, Mo.App., 273 S.W. 1106(2); State v. Menkens, Mo.App., 266 S.W. 1004(1)] and thus must show not only the husband's failure to provide but also his ability to do so [State v. Ball, Mo.App., 157 S.W.2d 262, 263(3); State v. Burgoldt, Mo.App., 299 S.W. 829; State v. Clifton, Mo.App., 274 S.W. 89(3)] unless his inability to provide has been brought about willfully. State v. Florian, Mo.App., 91 S.W.2d 121, 122; State v. Mestemacher, Mo.App., 64 S.W.2d 130, 131; State v. Gilligan, Mo.App., 287 S.W. 779(2).

However, in passing on the sufficiency of the evidence, as challenged by defendant's motion for judgment of acquittal at the close of all of the evidence, we must accept as true the substantial evidence and all inferences reasonably to be drawn therefrom which are favorable to the jury verdict [State v. Sheard, Mo., 276 S.W.2d 191, 193(3); State v. Shriver, Mo., 275 S.W.2d 304, 305(4); State v. Emrich, Mo., 250 S.W.2d 718, 725(8); State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 119(3)]; and, we may not weigh the evidence or judge the credibility of witnesses [State v. Clark, Mo., 277 S.W.2d 593, 595(2), 600(5); State v. Hampton, Mo., 275 S.W.2d 356, 359(4); State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804(5); State v. Thursby, Mo., 245 S.W.2d 859, 862(5)], excepting only insofar as that may be necessary to determine whether the evidence is sufficient to permit reasonable minds to believe defendant to be guilty beyond a reasonable doubt. State v. Nash, Mo., 272 S.W.2d 179, 183(2). Viewing the evidence in the instant case in the light of the foregoing principles, we conclude without hesitation or doubt that the issue as to defendant's ability vel non to provide for his wife from January 10, 1954, to the filing of the information on July 9, 1954 (his failure to provide being in effect conceded), was for resolution by the jury and that its verdict finds ample evidentiary support. State v. Earnest, Mo.App., 162 S.W.2d 338, 342; State v. Hartman, Mo.App., 259 S.W. 513, 514; State v. Stoughton, Mo.App., 189 S.W. 601; State v. Wiese, 156 Mo.App. 135, 136 S.W. 238. The motion for judgment of acquittal at the close of all of the evidence properly was overruled.

Defendant's next complaint is that instruction 1 was 'incurably defective and erroneous' and was 'vague and confusing' because it required a finding that the offense had been committed 'from and after January 13, 1954, up to the time the charge in this case was filed,' although there had been no evidence as to the date of filing of the information and the instruction did not give that date. It is true that, as defendant points out, the court should not refer the jury to the information to determine what must be found for conviction [State v. Herring, 268 Mo. 514, 536, 188 S.W. 169, 175(11); State v. McCaskey, 104 Mo. 644, 648, 16 S.W. 511, 512(3); State v. Brown, 104 Mo. 365, 371, 16 S.W. 406], although it should be noted that the giving of an instruction referring to the information has not always been held to have constituted reversible error. State v. Hicks, Mo., 167 S.W.2d 69, 73(7); State v. Citius, 331 Mo. 605, 616, 56 S.W.2d 72, 76(8); State v. Herring, supra, 188 S.W. loc.cit. 175. It is stated, as a broad general principle of universal application, that only prejudicial error justifies reversal. State v. Mayberry, Mo., 272 S.W.2d 236, 240(5); State v. Rohman, Mo., 261 S.W.2d 69, 72(4); State v. Reagan, Mo., 108 S.W.2d 391, 397(16); State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523, 527(18); State v. Tatman, 264 Mo. 357, 175 S.W. 69, 71(1). Thus, the giving of an erroneous instruction does not constitute reversible error if the jury is not misled thereby. State v. Harris, 357 Mo. 1119, 212 S.W.2d 426, 428(7); State v. Fitzgerald, Mo., 174 S.W.2d 211, 213-214(5); State v. Baumann, Mo., 1 S.W.2d 153, 156(4, 5). 'The touchstone * * * is: Did the instruction as given tend to prejudice the rights of the defendant. Absent this essential, * * * it does not constitute error.' State v. Taylor 293 Mo. 210, 223, 238 S.W. 489, 493(7); State v. Citius, supra, 56 S.W.2d loc.cit. 76. See Supreme Court Rules 24.11, 26.04, 27.19(a)(4) and 36.02.

In the instant case, the information charged and the evidence showed defendant's continuing failure to provide for his wife during the period from January 13, 1954, to the date of the filing of the information, to-wit, July 9, 1954. Thus, a specific date or time was not of the essence of the offense charged. Compare State v. Childers, Mo., 268 S.W.2d 858, 861(6); State v. Proffer, Mo., 159 S.W.2d 681, 683(6); State v. English, Mo., 228 S.W. 746, 749(4). Contrast State v....