State v. Wonderly

• Citation: 17 Mo.App. 597
• Parties: STATE OF MISSOURI, Respondent, v. JOHN M. WONDERLY, Appellant.
• Decision Date: 05 May 1885
• Court: Court of Appeal of Missouri (US)

17 Mo.App. 597

STATE OF MISSOURI, Respondent,

v.JOHN M. WONDERLY, Appellant.

St. Louis Court of Appeals, Missouri.

May 5, 1885.

APPEAL from the Knox County Circuit Court, TURNER, J.

Reversed and remanded.

W. C. HOLLISTER, for the appellant.

G. L. BALTHROPE, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

This is a prosecution, commenced before a justice of the peace, for abandonment of a wife and child, under Rev. Stat., sect. 1273. The affidavit of a private citizen was first filed charging the offense, and on this the justice issued a warrant and caused the defendant to be brought before him. Upon this appearance, the prosecuting attorney for the county filed a formal information whereupon the prisoner was tried before a jury and found guilty. He appealed to the circuit court, wherein the prosecuting attorney, on leave, filed an amended information. There was another jury trial, which resulted in the defendant's conviction and an assessment of his punishment at a fine of four hundred dollars, with imprisonment in the county jail for the term of twelve months.

The affidavit first filed conferred no jurisdiction on the justice, as was decided by this court on constitutional grounds in Ex. Parte Thomas, 10 Mo. App. 24. But the defendant, while in custody, pleaded “not guilty” to the information filed by the proper officer and this amounted to a waiver of any irregularity in his arrest. It is objected, however, that there was no jurisdiction, because article eleven, section twelve of the state constitution prescribes that all offenses other than felonies “shall be prosecuted criminally by indictment or information as concurrent remedies.” From this it is argued that, since an indictment must originate with a grand jury and in a court of record, an information cannot be “concurrent” therewith, when not pursued as a remedy also in a court of record. To state the position in other words, a justice has no jurisdiction to try an indictment, and therefore he cannot have jurisdiction to try an information, which is constitutionally concurrent therewith. The argument is frivolous. The two remedies are concurrent, because employed or “running together” to the same end--the punishment of crimes other than felonies. To say that they cannot be concurrent unless originating in the same court or in the same sort of courts, is about as reasonable as to say that two animals cannot be found “running together,” if not born of the same mother. The offense charged in this case is a misdemeanor, and jurisdiction of it by information is clearly conferred on justices of the peace “except in cities having exclusive jurisdiction in criminal cases,” by Revised Statutes, sections. 1760, 1762, 2024. The amended information filed by the prosecuting attorney was authorized by section 2027.

The testimony tended to show that the defendant and the prosecutrix were married on September 20, 1883, and that a child was born to them in a week after the marriage. The defendant admitted on the trial that this child was his. The first proper information was filed on November 20, 1884, and charged a continuous abandonment from December 1, 1883, up to the date of the filing. The proofs tended generally to establish an abandonment to the extent charged, and the defendant virtually admitted it by his conduct and declarations, except that, during the trial and a short time before it, he expressed a willingness to return to his wife and take care of her to the best of his ability. Both offers were rejected by the wife, on the ground that he had instituted divorce proceedings against her in which he falsely charged her with improper intimacy with other men prior to her marriage, and that her child was the offspring of one of them. The record of the divorce suit was put in evidence, showing that it was commenced on November 11, 1884, and dismissed by the plaintiff on the 29th of the same month. The admission of this record against the defendant's objections is assigned for error. We do not perceive that the...