Hopkins v. State

105 N.W. 223, 126 Wis. 104, 1905 Wisc. LEXIS 217

• Court: Wisconsin Supreme Court
• Decided: October 24, 1905
• Status: Published

Opinion

Cassoday, O. J.

1. It appears from the record that the accused was forty-two years of age and his wife twenty-nine years of age at the time of the trial. lie had then been married to the complainant for nearly ten years. Their daughter, Mary, mentioned in the amended information, at that time lacked about four months of being nine years of age. The little child, Nellie, mentioned therein, was at that time about one year of age. That amended information charged the accused, in substantially the language of the statute (sec. 4587c, Stats. 1898), with having on March 1, 1904, wil-fully and maliciously abandoned his wife, Mary, and the two minor children named, leaving her and them in a destitute condition, and that since that date he had unreasonably refused and neglected to provide for Ms said wife, Mary, and" Ms said minor cMldren, contrary to the statute cited. We' perceive no error in’admitting testimony tending to prove that the accused had unreasonably refused and neglected to-provide for his wife and children from March 1, 1904, down to the time of filing such amended information. Firmeis v. State, 61 Wis. 140, 20 N. W. 663; Jenness v. State, 103 Wis. 553, 79 N. W. 759.

2. ISTor do we find any error in charging the jury to the effect that if the accused, “being of sufficient ability and able to earn the means of support for his wife and said minor child,’5' had “unreasonably refused and neglected to provide for either Ms said wife or minor child ever since about March 1, 1904,, beyond a reasonable doubt,” then that it was their duty to find the accused guilty under the law of this state. The statute is certainly broad enough to cover such unreasonable refusal and neglect to provide between the time of the alleged abandonment and the time of filing such amended information, a year and twenty days thereafter. Another criticism of the portion of the charge thus mentioned is that it failed to state which of the two minor children was therein referred to. Obviously it did not refer to Nellie, who was disowned by the accused, since it is undisputed that she was not born until some weeks after the time mentioned in the portion of the charge so given. In that portion of the charge the trial court was merely stating the duty of the accused to support Ms wife and his child Mary, as prescribed in the statute.

3. The only trouble we have had with the case is as to the-portion of the charge relating to “the reciprocal duty of the wife to live with her husband and observe all her marriage-vows.” In those portions of the charge the jury were told that:

“If, without legal excuse and being offered a comfortable house by him, she refuse to live with her husband, then such wife forfeits her right to support; but not so as to the minor 'child or children. Such child is still entitled to the maintenance and support of the father to the best of such father’s ability, regardless of the forfeiture of the wife of her rights ‘to such support.”

And again:

“It is claimed on the part of the defendant that, because his wife, Mary ITojokins, has refused to live with him and ■cleaves to her mother and her mother’s roof, therefore he is justified in his refusal to contribute to the support of his wife and his minor child or children. Now I charge you, ■gentlemen, that it is the legal duty of every husband and father to support and maintain his wife and minor child or children to the extent of his ability, and, if you find from the evidence in the case under the rules I have given you that the defendant, being of sufficient ability to maintain or to ■earn the means to support his wife and minor child or children, has unreasonably refused or neglected to provide for •them the means of support, then you should find the defend•ant guilty.”

The question recurs whether, as applied to the evidence in 'this case, such portions of the charge were misleading. The wife testified to the effect that at the time Nellie was bom in March, 1904, the accused said it did not belong to him; that ■since that time he had not tendered nor furnished her any aid; that about that time she applied to the city for aid; that,’ if he had offered her support after Nellie was born, she and her mother would not have taken it; that, if he had offered 'her money, she would have taken it, notwithstanding his disowning Nellie; that, if he provided a home, a house, furnished a home for her and promised that he would support and maintain her, she would not go to live with him; that she would die first by reason of his disowning Nellie. The wife’s mother, with whom she made her home, testified to the effect that she did not want the accused to come to- her house; that ■she supposed she told him to go away from there and not to •come back again; that if he had behaved at all and come there right she would'have let him in. The accused testified to the effect that at different times he had asked his wife to leave-her mother’s home so- that he could have a home of his own;. that quite a number of times she said she would not go; that his mother-in-law had a dozen times forbidden him t.o come-to her house, and that that was the reason he had not gone there; that he did not want anything to do with them; that he was at the house after Nellie was horn; that after that time he had not tendered any support to his wife or children;, that they did not keep house when they lived at Genesee, but hoarded; that he never provided a house with furniture- and necessary utensils for keeping house since he was married; that during the last year before the trial he had not bought any furniture nor done anything toward providing a home for his family, but had requested them to come and live with him during that time. Thus the evidence tends to prove that they lived' together eight years without his providing any house or home; and yet the court charged the jury to the effect- that, if the wife “being offered a comfortable house by him” and she “without legal excuse” refused to live with him, then she forfeited her right to' support; but not so as to the minor child .or children, who were still entitled to maintenance and support from the father. Such charge was emphasized by the portion of thé charge ab%ve quoted, presenting to the jury the claim of the accused for refusing to contribute to the support of his wife and children. We are constrained to hold that such unqualified portions of the-charge were misleading. The question whether the wife’s-, conduct was such as not to make it criminal for him to refuse- or neglect to furnish such support was -a question of fact for the jury, under proper instructions from the court. There is no ground for the contention that the verdict is not supported by evidence.

By the Gourt. — The judgment of the municipal court for the eastern district of Waukesha county is reversed,, and the-cause is remanded for a new trial.