State v. Macklin

Missouri Court of Appeals

State v. Macklin

86 Mo. App. 636, 1901 Mo. App. LEXIS 225

DecidedJanuary 2, 1901

StatusPublished

This text of 86 Mo. App. 636 (State v. Macklin) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Macklin, 86 Mo. App. 636, 1901 Mo. App. LEXIS 225 (Mo. Ct. App. 1901).

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Opinion

BLAND, P. J.

Erom a conviction of wife abandonment in the St. Louis Criminal Court defendant appealed to this court. To reverse the judgment he assigns as error the admission of improper evidence on the part of the prosecution and the rejection of competent testimony offered on his behalf, and the refusal of his demurrer to the evidence.

One Louisa Otto was permitted, over the objections of appellant, to testify that appellant was not supporting his wife, because the latter frequently borrowed money from her. This testimony was clearly incompetent, it being the expression of an opinion, and was prejudicial. The "appellant offered to prove that his wife was jealous and abusive, by a witness who dated her knowledge of the fact two years back. This was rejected by the court, on the ground that it was [638]*638too remote. Appellant then offered to prove that indignities had been offered him by his wife continuously for a period of five years and down to the date of separation, December 16, 1899. This offer was rejected by the court, and the appellant was confined to such indignities as were offered at or near the date of separation.

To constitute the offense of wife abandonment, the abandonment must be made without good cause and with a criminal intent. Shell indignities as would make life intolerable and authorize the granting of a divorce to the husband (in a proper suit), would be good cause for abandoning the wife, and it was competent for appellant to show that his wife had offered him such indignities at any time during the continuance of their marital relation, provided they continued down to the time of the separation. The evidence was that on account of the wife accusing him of being crazy and trying to have him arrested by the police, when he was only sick, the appellant, with the consent of his wife, separated from her, and that they divided their children between them. This evidence is uncontradicted. There was a separation by mutual consent, by the express agreement of the wife. This was not abandonment and could not be converted into abandonment by the wife’s subsequent willingness to terminate the separation. State v. Bruening, 60 Mo. App. 51; State v. Weber, 48 Mo. App. l. c. 504. The demurrer to the evidence should have been sustained.

The judgment is reversed.

All concur; Judge Biggs in result.

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BLAND, P. J.

Erom a conviction of wife abandonment in the St. Louis Criminal Court defendant appealed to this court. To reverse the judgment he assigns as error the admission of improper evidence on the part of the prosecution and the rejection of competent testimony offered on his behalf, and the refusal of his demurrer to the evidence.

One Louisa Otto was permitted, over the objections of appellant, to testify that appellant was not supporting his wife, because the latter frequently borrowed money from her. This testimony was clearly incompetent, it being the expression of an opinion, and was prejudicial. The "appellant offered to prove that his wife was jealous and abusive, by a witness who dated her knowledge of the fact two years back. This was rejected by the court, on the ground that it was [638]*638too remote. Appellant then offered to prove that indignities had been offered him by his wife continuously for a period of five years and down to the date of separation, December 16, 1899. This offer was rejected by the court, and the appellant was confined to such indignities as were offered at or near the date of separation.

To constitute the offense of wife abandonment, the abandonment must be made without good cause and with a criminal intent. Shell indignities as would make life intolerable and authorize the granting of a divorce to the husband (in a proper suit), would be good cause for abandoning the wife, and it was competent for appellant to show that his wife had offered him such indignities at any time during the continuance of their marital relation, provided they continued down to the time of the separation. The evidence was that on account of the wife accusing him of being crazy and trying to have him arrested by the police, when he was only sick, the appellant, with the consent of his wife, separated from her, and that they divided their children between them. This evidence is uncontradicted. There was a separation by mutual consent, by the express agreement of the wife. This was not abandonment and could not be converted into abandonment by the wife’s subsequent willingness to terminate the separation. State v. Bruening, 60 Mo. App. 51; State v. Weber, 48 Mo. App. l. c. 504. The demurrer to the evidence should have been sustained.

The judgment is reversed.

All concur; Judge Biggs in result.

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86 Mo. App. 636, 1901 Mo. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-macklin-moctapp-1901.

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