State v. Rotter

• Decision Date: 04 January 1916
• Parties: STATE OF MISSOURI, Respondent, v. JULIUS ROTTER, Appellant
• Court: Missouri Court of Appeals

181 S.W. 1158

193 Mo.App. 110

STATE OF MISSOURI, Respondent, v. JULIUS ROTTER, Appellant

Court of Appeals of Missouri, St. Louis

January 4, 1916

Appeal from St. Louis Court of Criminal Correction.--Hon. Calvin N Miller, Judge.

AFFIRMED.

Judgment affirmed.

Chas P. Comer for appellant.

(1) When the prosecuting attorney files an information based upon the affidavit of a private person competent to testify in the case, he must file the affidavit with the information, and the latter must show on its face, when such is the case, that it is predicated upon the affidavit filed with it, in order that the defendant may know who his accusers are, the prosecuting attorney or some other person. State v Schuettler, 181 Mo. 185-186; State v. Ransberger, 106 Mo. 138; State v. Whitaker, 75 Mo.App. 187. (2) The marriage of a man or woman where one of them has a husband or a wife by a prior marriage who is then living and undivorced is void and not merely voidable. Being a nullity, no decree is necessary to avoid same. Cartwright v. McGown, 121 Ill. 395. (3) In order to constitute a common-law marriage there must be a distinct and positive contract between a man and woman capable of assenting thereto, that they will live together as husband and wife. It is the consent of the parties and not their living together as husband and wife which constitutes a valid common-law marriage. Hiller v. People, 156 Ill. 511; Hebblethwaite v. Hepworth, 98 Ill. 132; Cartwright v. McGown, 121 Ill. 389; Appeal of Reading Fire Ins. Co., 113 Pa. St. 204; Harbeck v. Harbeck, 102 N.Y. 714; Hantz v. Sealy, 6 Binn. 405. (4) Mere abandonment and subsequent failure or refusal to support do not prove the criminal offense of wife abandonment. The State must further show that the defendant had no good cause for the abandonment. State v. Satchwell, 68 Mo.App. 40. (5) It is not enough to authorize a conviction under the statute that there was abandonment and a failure and neglect to support the wife, but the State must prove beyond a reasonable doubt that the alleged abandonment was without a good cause and with a criminal intent, and that the defendant, also with a criminal intent, failed to provide for his wife. State v. Doyle, 68 Mo.App. 220. (6) In order to authorize a conviction for wife abandonment it is not enough to prove that there was an abandonment of and a failure and neglect to support his wife, but the State must show that the defendant was able to support his wife; that is, that he had an income or means, or that he had employment, so that he could support his wife, and, unless this is shown, the conviction cannot stand. State v. Linck, 68 Mo.App. 163-164; State v. Satchwell, 68 Mo.App. 41-42.

No brief filed for respondent.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--Defendant prosecutes this appeal from a judgment of conviction on a charge of wife abandonment.

It is argued the court should have quashed the information on defendant's motion, for the reason it failed to disclose that it was founded upon the affidavit of defendant's wife, the prosecuting witness, and is not verified by her; but obviously this argument is without merit, for it appears the prosecuting attorney verified the information under his oath in accordance with the statute. It is true Lillian Rotter, defendant's wife, lodged an affidavit with the prosecuting attorney, charging defendant with the offense of wife abandonment, and it is true, too, that this affidavit is not mentioned in the information. But be that as it may, the information is in all respects sufficient, in that its verification conforms to the statute.

The statute (section 5057, R. S. 1909) provides:

"All informations shall be signed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; the verification by the prosecuting attorney may be upon information and belief."

The information in the instant case is verified by the prosecuting attorney and the facts therein stated are said to be true according to his information and belief. It appears from the jurat that the oath was administered to the prosecuting attorney by the judge of the St. Louis Court of Criminal Correction. Manifestly this verification of the information is sufficient and complies in all respects with the statute. The case of State v. Schnettler, 181 Mo. 173, 185, 186, 79 S.W. 1123, is in no wise in point here, for there the information was not verified either by the oath of the circuit attorney or by some person competent to testify as a witness, nor did it appear that it was based upon the affidavit of some person filed with the clerk of the court as required by law. Here, although an affidavit was made and lodged with the prosecuting attorney, that officer, it appears, determined to proceed on his own initiative and exhibited the information accordingly verified as the statute requires in such cases.

The only purpose of the statutes in requiring the information to be supported by affidavit of some persons other than the prosecuting attorney is to afford a guaranty of the good faith of the prosecution. The affidavit, when filed, it is said, is not parcel of the information, but is separate and apart from it, or in addition thereto. [See State v. Brown, 181 Mo. 192, 79 S.W. 1111.] Manifestly, after the affidavit of the prosecuting witness was lodged with the prosecuting attorney as a guaranty of good faith of the prosecution, it was competent for him to disregard it further and proceed to inform against defendant through the office of an information signed and verified by himself as prosecuting attorney according to his information and belief.

The information was filed against defendant on November 20, 1912. It charges, in substance, that defendant abandoned his wife, Lillian Rotter, about the 13th day of June, 1910, without good cause, and has ever since failed to maintain and provide for her, etc. It appears defendant, at the time of the issuance of the information, was a practicing physician, engaged in conducting a hospital at Parsons, Kansas. He had abandoned his wife without good cause more than two years before, and, though she had diligently searched, she was unable to locate him definitely until shortly before this prosecution was commenced. The evidence is, that defendant came to St. Louis from New York several years ago and was first employed as a conductor on the street cars. During that time he met Lillian Levy and they were married by Rabbi Rosenblatt in October, 1903. Defendant appears to have been an ambitious and sprightly young man and desired to acquire an education in medicine. After the marriage, he, together with his wife, resided with his wife's parents, the Levys, at 1807 Wash street, where her parents owned a home. They lived there as husband and wife for several years and defendant attended a medical college in St. Louis until his graduation. After having graduated in medicine, he was installed as interne at the Jewish Hospital in St. Louis and received as compensation $ 30 per month, together with his room and board at the hospital. The parties, however, maintained their home during the time at the residence of the parents of the prosecuting witness, and finally removed with her parents to 3707 Delmar avenue, where they continued to reside.

Witness after witness testified on the part of the State that the prosecuting witness treated defendant at all times with kindness, affection and respect and that she was a good wife to him in every respect; moreover that she and her parents aided him in acquiring his education in medicine. All of this time it is said defendant's wife was supported by her parents, except for an occasional small contribution on the part of defendant after he commenced drawing salary as an interne at the Jewish Hospital.

About the first of June, 1910, defendant received an appointment as superintendent of the Female Hospital at St. Louis, but before he qualified and entered upon the duties of this office, the city authorities called for his resignation. The evidence is not clear as to why his resignation was called for, but it is to be inferred that the authorities learned of his prior conduct with respect to having contracted a marriage in St. Louis, while having a wife living in New York. But be this as it may, defendant resigned the position to which he was appointed and left the city for New York. At this time defendant and his wife were residing on Evans avenue with her sister and brother-in-law, temporarily, and the evidence is, that defendant said he was going to quit his wife, Lillian, because she was no longer in his class. The prosecuting witness testified that defendant, her husband, told her she was not sufficiently educated for him now that he had evolved into a doctor and that she would be a millstone about his neck in the future. Another witness says that defendant told him he was going to quit his wife because she...