State v. Wiese

• Decision Date: 04 April 1911
• Parties: STATE v. WIESE.
• Court: Missouri Court of Appeals

136 S.W. 238

156 Mo. App. 135

STATE v. WIESE.

St. Louis Court of Appeals. Missouri.

April 4, 1911.

1. CRIMINAL LAW (§ 1064)—APPEAL—PRESENTATION BELOW—MOTION FOR NEW TRIAL —GROUNDS.

Where the only grounds for a new trial assigned in accused's motion therefor was that the verdict was contrary to the law and evidence, that is the only question which can be considered on appeal.

2. HUSBAND AND WIFE (§ 304)—ABANDONMENT —NATURE OF OFFENSE.

To authorize a conviction for wife abandonment under the statute, the abandonment must have been with criminal intent, without good cause, and without intention to resume cohabitation, and accused must have failed to provide for his wife when he had the means to do so; mere abandonment and subsequent refusal to support not being sufficient.

3. HUSBAND AND WIFE (§ 313)—ABANDONMENT —PROSECUTION—SUFFICIENCY OF EVIDENCE.

Evidence in a prosecution for wife abandonment held to sustain a conviction.

4. HUSBAND AND WIFE (§ 313)—ABANDONMENT —PROSECUTION—SUFFICIENCY OF EVIDENCE —FAILURE TO PROVIDE.

Evidence in a prosecution for wife abandonment held to show a failure by accused with criminal intent to provide for his wife.

5. CRIMINAL LAW (§ 1159)—APPEAL—FINDINGS —CONCLUSIVENESS.

Findings of the jury based on conflicting evidence will not be disturbed on appeal if supported by substantial evidence.

6. HUSBAND AND WIFE (§ 305)—ABANDONMENT—DEFENSES.

That accused's wife refused to take him back except upon condition after an information had been filed against him for wife abandonment, and he was under arrest and on bail, was not a defense; the sufficiency of the state's case being determined as of the date the information was filed.

Reynolds, P. J., dissenting.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Christ Wiese was convicted of abandoning and neglecting to provide for his wife, and he appeals. Affirmed.

The defendant was convicted on September 8, 1909, of the offense of abandoning his wife without good cause, and failing, neglecting, and refusing to maintain and provide for her, and was adjudged to serve six months in the workhouse of the city of St. Louis. There are no assignments of error before this court or brief filed on behalf of the appellant, but nevertheless under section 5312, R. S. 1909, we must render judgment upon the record. The only ground urged by appellant in his motion for a new trial was that the finding was contrary to the law and the evidence. There were no declarations of law asked or given. The evidence on behalf of the state tended to show that on August 18, 1908, defendant and his present wife, Sophia Wiese, had been married and lived together for over 33 years, and were then occupying a rented house in the city of St. Louis. Two grown sons and a grown daughter, all unmarried, lived with them. The defendant had lately, on July 31, 1908, sold his farm near Washington, Mo., for $6,000, and had moved, with his family, into the city. On August 18, 1908, he left the city, telling his wife he had business to attend to at the old home, and would return when that was finished. He gave her $10 with which to pay her household expenses until his return. He then disappeared for over a year. The proceeds of the sale of his farm disappeared with him. His family tried to locate him by inquiries, by reporting the matter to the police, by advertisement, by having his picture inserted in a newspaper, and otherwise. No news came from the missing man, and all trace of him seemed lost. On August 18, 1909, having evidence that defendant was alive and a suspicion that he was at the Pontiac Hotel in the city of St. Louis, the wife caused a warrant to be issued against him for wife abandonment, and two days later he was arrested at the hotel. Before the arrest, the sons preceded the officer to the hotel, and found defendant in a room on the second floor. They asked him to go home with them, but he refused, and starter to leave, whereupon they had him arrested. One of the sons testified that, when defendant was searched at the station, he had a railroad ticket in his pocket good for that night; that the defendant's signature on the hotel register showed that he had been in the hotel for 10 days. Defendant had $600 on his person when arrested. The wife and children testified for the state to the effect that they had treated defendant well prior to his leaving her; that she had taken good care of him and the house, and nothing whatever had happened at or about the time that he left. The wife testified that he had left her penniless, with nothing to live on, except the $10, and that since leaving her and up to the time of the trial he had not provided for her. She was compelled to subsist on the bounty of her children. Defendant gave testimony on his own behalf to the effect that he was 68 years old, and had become sick and nervous because his family had not treated him with any kindness, but were continually "knocking at him"; that the boys had neglected the work on the farm, and he had been compelled to borrow money to keep the house going; that he had left his wife in search of health, and during the year of his absence had been in a sanitarium and in different cities under the treatment of doctors and nurses; that he had intended to stay away only until he got well. He admitted, however, the fraudulent manner of his going. He admitted he had money and had $600 on his person when arrested, and that he had not given her more than $10 when he left, and had sent his wife no money for her support while he was absent, but said that she had money; that he did not know how much; had paid no attention to that, but that she had some. He admitted, also, that about the 1st of June he had been in the city at the Pontiac Hotel and had there seen a married daughter, who did not live with the mother, and who seems to have been unfriendly with her; that he had also been at the Pontiac Hotel for a week or 10 days before he was arrested; that while he was gone he had communicated his whereabouts only to his married daughter. He testified...