State v. Wohlfort

• Decision Date: 12 March 1927
• Docket Number: 27,141
• Citation: 123 Kan. 62,254 P. 317
• Parties: THE STATE OF KANSAS, Appellee, v. AXEL WOHLFORT, Appellant
• Court: Kansas Supreme Court

254 P. 317

123 Kan. 62

THE STATE OF KANSAS, Appellee, v. AXEL WOHLFORT, Appellant

No. 27,141

Supreme Court of Kansas

March 12, 1927

Decided January, 1927.

Appeal from Clay district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Former Jeopardy--Applies Only to Strictly Criminal Prosecutions. The doctrine of former jeopardy applies only to strictly criminal prosecutions, and a recovery in an action for a wrong which is both private and public in its nature is not a bar to a prosecution for the wrong which under the statute constitutes a public offense.

2. HUSBAND AND WIFE--Abandonment--Defenses--Previous Action for Alimony and Contempt. In a prosecution under the wife-desertion act it appeared that the wife had previously brought a civil action for alimony in which an order granting temporary alimony had been made, with which defendant had refused to comply. To enforce compliance with the order defendant was adjudged by the court to be in contempt. In the prosecution of the criminal action the defendant presented a plea in bar contending that the contempt proceeding was in effect a criminal proceeding and that the judgment in that proceeding was a bar to a prosecution under the wife-desertion act. Held, that the order adjudging the defendant to be in contempt having been made was a part of a civil action, and was not a bar to a prosecution by the state for a violation of the wife-desertion act.

3. SAME -- Abandonment -- Evidence -- Record of Civil Proceedings. No error was committed in excluding the record of proceedings in the civil case.

4. SAME--Abandonment--Admissibility of Evidence. Other objections to the admission and exclusion of evidence are held to be without material error.

5. SAME--Abandonment--Instructions. The instructions refused and also those given have been examined and the rulings are held to be without error.

6. SAME--Abandonment--Sufficiency of Evidence. The evidence is deemed to be sufficient to uphold the verdict and judgment.

Park B. Pulsifer, Clyde L. Short, both of Concordia, and C. Vincent Jones, of Clay Center, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, John F. McClure, county attorney, and W. D. Vance, of Belleville, for the appellee.

OPINION

JOHNSTON, C. J.:

This was a prosecution under the wife-desertion act, wherein the defendant, Axel Wohlfort, was convicted, the jury finding that the defendant had neglected and refused without just cause to provide for the maintenance and support of his wife, Anna F. Wohlfort. There was evidence tending to show that the Wohlforts were married in 1911 and lived together as husband and wife until December 15, 1922. They had resided for a time on the Wohlfort farm with defendant's family, but had little success in farming, and early in 1922 they moved to Chicago, Ill. There they took an apartment and purchased the furniture therein with money borrowed from a sister of his wife, Anna, for which they executed a note. He found some work there at small wages and turned over most of his earnings to his wife, in whose name the bank account was kept. In 1922 his wife became ill with an ailment of the heart, and in October of that year she underwent a gall-bladder operation which left her in a weakened condition. The hospital bill was paid out of the earnings of the defendant. In December following he left Chicago, saying he was going to Topeka to find work, and the only means that was left with her was some furniture which she afterwards sold for $ 155, an old automobile for which she received $ 157.95, and a bank deposit of $ 10. He did not stay long in Topeka, but soon went to his mother's home in Scandia, where he has since remained. He wrote to his wife occasionally until March, 1923, but did not send her any money. Not hearing from him, she came back to Scandia in September, 1923, and shortly afterwards brought an action in Republic county to obtain alimony from him, which is still pending. A number of proceedings have been had in that action looking towards the furnishing of support to his wife, and there was an order made that he pay $ 50 per month as temporary support, pending the further order of the court, and $ 75 for suit money, as well as $ 50 as temporary attorney fees. As no payments were made under the order, the court on application found him guilty of contempt and ordered that he be confined in the county jail until he purged himself by paying the money as ordered by the court. The history of these proceedings may be found in Wohlfort v. Wohlfort, 116 Kan. 154, 225 P. 746, and in 118 Kan. 292, 235 P. 111. Certain personal property of the defendant was seized under the order made, which was sold for $ 338.25, which constitutes all that has been paid towards the support of his wife since December, 1922. During the pendency of the alimony case the prosecution of the criminal case was begun in Republic county, which was transferred by change of venue to Clay county, where the conviction was had.

It is contended, first, that the court erred in overruling the plea in bar and abatement filed by defendant, in which was set out at length the proceedings in the alimony case, including the proceedings in contempt. It is argued that the demurrer to the plea in bar conceded the facts stated to be true, and that the present prosecution is in effect putting him twice in jeopardy for the same act or offense. It is said that since the court on the civil side had assumed jurisdiction to fix the duty of a delinquent to pay money for maintenance, it would be manifestly unjust to charge him under a criminal statute for what had already been determined in the civil action. A citation for contempt on the civil side, it is said, was in effect a criminal proceeding and the judgment on the contempt proceeding is a bar to the prosecution under the desertion act.

The doctrine of former jeopardy applies only to strictly criminal prosecutions. Until a person is put upon trial before a court of competent jurisdiction upon an indictment, information or complaint, he is not in legal jeopardy. The contempt proceedings arose as we have seen, in a civil case in which temporary alimony was allowed as well as attorneys fees, and as these orders were not complied with, proceedings in contempt were instituted to enforce compliance with the orders. As the wife was in necessitous circumstances, the state upon her complaint began this prosecution alleging that he had deserted her, and without just cause had neglected and refused to provide for her support and maintenance in violation of the desertion act. (R. S. 21-442.) The first was a civil action between private parties to enforce private rights and in which no information or indictment was filed, and there was no arraignment and no conviction for a public offense. The contempt proceeding was a part of the civil case wherein the court took what was deemed to be the necessary steps to enforce its orders and preserve its dignity. The second was strictly criminal in character, brought by the state against the defendant for a redress of a public wrong and for punishment of a public offense. The fact that an illegal act may make a wrongdoer liable to pay compensation or damages and also subject him to criminal prosecution is not a ground for abatement of the latter. Both may arise out of the same wrong and be largely supported by the same character of testimony, but the parties are different, the purpose is not the same, and the judgments are not the same. In the civil action only a preponderance of the evidence is necessary to a result, while in the criminal the state must satisfy the jury beyond a reasonable doubt. Defendant cites State v. Miller, 111 Kan. 231, 206 P. 744, which was a prosecution under the desertion act, following a divorce proceeding in which the wife had been awarded the custody of a child and the husband was ordered to pay a considerable amount to support her and the child, and in obedience to the order property and money had been delivered to her to meet the required payment. Afterwards the child became ill, and when much money had been expended to relieve...