The State v. Frederici
| Decision Date | 02 February 1917 |
| Parties | THE STATE v. FRANK C. FREDERICI, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. -- Hon. Calvin N. Miller, Judge.
Reversed and remanded.
Oliver J. Miller for appellant.
(1) The court erred in not discharging defendant on his several motions. (a) It is incumbent upon the State to prove beyond a reasonable doubt that the alleged abandonment is without good cause and with criminal intent. State v. Doyle, 68 Mo.App. 219; State v. Loving, 184 Mo.App. 82. (b) Two elements are essential to constitute this offense; the criminal intent of abandonment without cause, and the failure and refusal to provide for the wife. The charge of this offense is not made out when the evidence shows that the wife was living on means provided by the husband. State v Fuchs, 17 Mo.App. 458; State v. White, 45 Mo 512; State v. Brunning, 60 Mo.App. 51. (c) The second essential element to make this offense, fails when it is shown that reasonable tenders and offers of support were made. State v. White, 45 Mo. 512. (2) The court erred in excluding relevant and material testimony. It erred in not permitting defendant to cross-examine the prosecuting witness on the question of the disposition of a certain piano. (a) Because it bore directly on question of means left with wife that could be used toward support, and the disposition thereof in a way which would raise the presumption that the wife had sufficient means of support left with her or given to her, by the husband. State v Fuchs, 17 Mo.App. 461. (b) It erred in not permitting the defendant to state his reason for discontinuing his remittance to his wife on January 25, 1913. This offense is not malum in se, but malum prohibitum, made so by statute, and evidence in defense tending to show an absence of criminal intent is material and relevant.
John T. Barker, Attorney-General, and James P. Kem for the State.
(1) The trial court did not err in refusing to discharge the defendant. (a) There was substantial evidence of the defendant's failure or refusal to provide for and maintain his wife. State v. Weyant, 149 Iowa 457; State v. Waller, 90 Kan. 829; Burton v. Commonwealth, 109 Va. 800. (b) Whether the defendant acted under a mistake was a question of fact, the disposition of which by the trier of the facts is conclusive on appeal. 1 Bishop's New Criminal Law (8 Ed.), p. 302; Marshall v. State, 49 Ala. 21; Goetz v. State, 41 Ind. 162. (2) The court did not err in excluding irrelevant and immaterial testimony. (a) It did not err in permitting defendant to cross examine the prosecuting witness on the disposition of the piano. (b) The appellant cannot now complain that the court did not permit the defendant to state what he had been advised by his lawyer.
Defendant was convicted of wife abandonment and sentenced to pay a fine of $ 500. He appealed to the St. Louis Court of Appeals, where, in an opinion by Allen, J., the judgment was reversed and the defendant discharged. Nortoni, J., dissented, deeming the majority opinion contrary to the opinion of this court in Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S.W. 968, and the cause was therefore certified to this court. The opinions filed in the St. Louis Court of Appeals are reported in 184 S.W. 170.
The parties were married June 29, 1910. The wife had a daughter by a previous marriage. The defendant has no children.
About December, 1910, the defendant purchased a house in St. Louis for $ 1900, all on time payments. They moved into the house at once, and lived together there until July 4, 1912, on which day defendant abandoned his home, leaving it, and all the property therein in possession of the wife, and leaving her in possession also of some chickens which were kept on the premises, not over fifty in number. Up to that time there had been paid on account of the purchase of the house, interest, taxes and
water-rates
$ 441.06
For improvements
187.75
For chicken house
126.00
For furniture
392.90
For carpets
44.18
For household goods
211.88
For piano (principal)
201.00
For piano (interest)
10.12
The wife testified that she paid a portion of those items with her own funds. The defendant testified that the wife had no money, and that he made all those payments. There was still due at the time to the Baldwin Piano Company $ 64 on the piano.
The defendant worked for a chemical company, and in addition did a collection business. The wife testified that he made from $ 200 to $ 250 a month, but he testified that his earnings did not exceed $ 85 monthly. The wife testified that the defendant at times drank to excess and stayed out two or three nights of each week; that she gave him no cause to leave her; that he would not support her, nor pay the grocery bills; that they quarreled on that account; and that he packed his clothes and left without saying a word.
Mrs Miller for the State testified that the defendant and his wife seemed to get along pleasantly for a while after their marriage; that the wife was sick about two weeks before defendant left, and that she (witness) was there to care for her; that she never saw the wife mistreat her husband; that defendant went away and came back in ten days, when witness said to him, "Please come back to your wife and do what is right; we all like you, and you have a nice little home here, and you can pay it out and have it in your old age," and that he answered, "I have made up my mind and I will;" that he came back and stayed all night and went away, and after some time came another night, then left and never returned; that he refused to pay any bills and left her destitute and without means for support; that they quarreled about money matters, and that the wife told him he ought to pay his grocery bills.
The wife testified that the defendant told her that he had "affinities" among the other women.
In August after leaving his wife the defendant sued for divorce, but soon after dismissed his suit. While the suit was pending the court ordered the payment of five dollars a week alimony. The defendant paid three weeks' alimony before the suit was dismissed. The defendant afterwards made such weekly payments of five dollars beginning November 18, 1912, and ending on January 25, 1913. He paid nothing after that. This prosecution was begun March 18, 1913. The defendant testified that he furnished his wife after the separation with money amounting in all to about $ 98, while she placed it at $ 65. She testified that she sold a typewriter for $ 10, a kitchen cabinet for $ 10, and a bookcase for $ 5, and that she bought bread with the money. The piano which was in defendant's house when he left home was returned to the Baldwin Company, and a "player piano," the price of which was $ 725, was put in place of it. Counsel for defendant sought, on cross-examination of the wife, to learn the particulars of that exchange, for the purpose of showing that the old piano was traded in on the new as a payment for $ 241 thereon. The trial court refused such cross-examination.
Defendant testified that he stopped making his weekly payments because he was informed that his wife had sold the piano for $ 100. He also testified that he offered the wife $ 100 for the piano.
The State read in evidence two letters from the defendant to his wife. One was dated July 18, 1912, and directed her to turn the piano over the Baldwin Company, saying that he would not be able to make any more payments on it. The other was dated September 4, 1912, and offered her $ 100 if she would deed the house to him.
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