State v. Tietz. should not have been convicted. In so concluding we pass over the action of the court on the exclusion of evidence, with the remark that the action was error for which the judgment would have to be set aside. But on the evidence which was admitted and is before us, the conviction cannot stand. We have in this State, in addition to this section 4495, as amended in 1911, and upon which this prosecution is founded, section 4492, Revised Statutes 1909, which provides: "If any mother of any infant child, under the age of sixteen years, or any father of any such infant child, born in or legitimatized by lawful wedlock, shall, without lawful excuse, refuse or neglect to provide for such infant necessary food, clothing or lodging, or shall unlawfully and purposely assault such infant or apprentice, whereby his life shall be endangered or his health shall have been or shall be likely to be permanently injured, the person so offending shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding one year, or by a fine of not more than $1000, or by both such fine and imprisonment." This section has been construed by our Supreme Court in State v. Thornton, 232 Mo. 298, 134 S. W. 519, which we will refer to hereafter. It is the only decision under this section which we have found. The first act covering the offense of wife and child abandonment of which we are aware, was the Act of 1867 (see Acts 1867, p. 112); 1 Wagner's Stat. (Ed. 1872), secs. 34 and 35, p. 497. This act made it a misdemeanor for every husband, without good cause, to abandon his wife, and fail, neglect or refuse to maintain or provide for her; "or who shall, without good cause, abandon his child or children, under the age of twelve years, born in lawful wedlock, and fail, neglect, or refuse to maintain and provide for such child or children." This went into the revision of 1879 as section 1273, the two sections of the Act of 1867 being State v. Tietz. consolidated into one. This section is word for word that of section 3501, in the revision of 1889, and section 1861, revision of 1899. By the Act of June 4, 1909 (Acts 1909, p. 450), this section 1861 was amended by confining its operation exclusively to wife abandonment. At the same session and by the same act, that is the Act of June 4, 1909, what is now section 4492, which had been section 1857, of the revision of 1899, was amended so as to read as we have before noted, making the offense a felony. So stood the law until 1911, when by the Act of March 30th of that year (Laws 1911, p. 193), section 4495, Revised Statutes 1909, was amended and section 1861 of the revision of 1899, reenacted, the only change in it being that the age of the child was raised from twelve to fifteen years. It will be noticed that in the Thornton case the learned judge who wrote the opinion laid stress on the word "necessary," holding that section 4492 carried a punishment for failure to provide "necessary" food. The word "necessary" is not used in section 4495 as amended by the Act of March 30, 1911, but that section, as we understand it in the light of the decisions which have construed it and its predecessors, does relate to necessary provision for the wife and children, as clearly as if that word had been used. We think the decisions under it demonstrate this. The first decision that we have found in which what is now the amended section 4495, was in State v. White, 45 Mo. 512, referring to that section as it appeared in the Acts of 1867, before cited. In that case the defendant, among other evidence, proposed to ask a witness if the defendant had not rented a house from him which defendant's wife refused to occupy. This question, on objection, was excluded. Our Supreme Court said: "The question clearly went to the merits of the issue. If defendant furnished his wife with a suitable residence, he had so far contributed to her support; and if she refused to occupy it, it certainly was not his State v. Tietz. fault." For the refusal to allow this question to be asked, the judgment of conviction in that case was set aside. In State v. Newberry, 43 Mo. 329, it was held that in a prosecution under this section, the wife was competent to swear to the complaint. These are the only two cases in which we find this section to have been considered by our Supreme Court, until in State v. Thornton, supra, the corresponding section 4492, as we have before remarked, was construed. Our court in State v. Wonderly, 17 Mo. App. 597, had before it the construction of this section, then section 1273, Revised Statutes 1879, where the prosecution was for the abandonment of a wife and child. Commenting on a verdict which the court held to be excessive and that it had been rendered so by the admission of improper testimony, the court said (1. c. 601): "It was shown that the wife had a home at her father's, where she was always comfortably provided for and preferred to remain; so that no element of destitution or family suffering occasioned by the defendant's neglect was apparent in the case." In State v. Greenup, 30 Mo. App. 299, a prosecution against the husband for abandoning his wife, referring to the fact that the defendant had written several letters to his wife after their separation, soliciting her to come to him and live with him at his own home, and representing that he was able to provide for her and promising her good treatment in case of her good behavior, our court has said (1. c. 301): "We see no evidence in the record tending to show that she would not have been well provided for and kindly treated if she had complied with these repeated requests. She refused to comply with them." Commenting on this state of affairs, our court further said (1. c. 303): State v. Tietz. "This is a criminal action. The State, and not the wife, is the complaining party. Two elements are essential to constitute this offense: The criminal intent to abandon without cause, and the failure and refusal to provide for the wife. [State v. Fuchs, 17 Mo. App. (1. c.) 461.] In order to make out its case, the State must show, beyond a reasonable doubt, the existence of both of these elements. Evidence of a mere abandonment and a subsequent failure and refusal of support does not prove the criminal offense denounced by the statute. The State must further show that the defendant had not 'good cause' for the abandonment. The State must show this, although it involves the necessity of proving a negative; for the rule in this State even in civil cases is, that where the plaintiff grounds his right of action in the negative averment, and the proof of the affirmative is not peculiarly within the knowledge and power of the defendant, the establishment of the negative is an essential element of the plaintiff's case. [State v. Schar, 50 Mo. 393.] In this case the absence of 'good cause' for the abandonment, if such existed, was not a fact peculiarly within the knowledge of the defendant, and, therefore, the State was bound to prove it in order to sustain a conviction of a criminal charge. In this record we discover no such evidence in support of the averment of the indictment that the abandonment was 'without any good cause whatever.' . A husband, it has been well said, is bound to provide for his wife in his family; and while he is guilty of no cruelty to her, and is willing to provide for her a home and all necessaries there, he is not bound to furnish them elsewhere. [McCutchen v. McGahry, 11 Johns. (N. Y.) 282, per Platte, J.; Rutherford v. Coxe, 11 Mo. 353, per Napton, J.] In a latter case Judge NAPTON, speaking for the Supreme Court, said: "The question is one of desertion; and we hold that the wife is bound to follow the fortunes of her State v. Tietz. husband, and to live where he chooses to live, and in the style and manner which he may adopt.' Messenger v. Messenger, 56 Mo. 337.' It is true that Rutherford v. Coxe, supra, is to recover for the value of necessaries furnished the wife, and Messenger v. Messenger was an action for divorce. Their application to the case at bar is that they are illustrative of the point that an offer to return, if made in good faith, breaks the force of the desertion. These two cases, that is the Fuchs case and the Greenup case, were followed and approved in State v. Brinkman, 40 Mo. App. 284. In State v. Brinkman, supra, the rule announced in State v. Greenup, supra, is repeated, namely, that to constitute the offense of wife abandonment, there must be, first, the criminal intent to abandon without good cause; second, the failure to provide for the wife. At page 288, it is said by Judge BIGGS, speaking for our court: "It is quite clear that the State failed to show by satisfactory proof that the defendant with criminal intent, abandoned his wife without 'a good cause.' The reasons assigned by her for leaving her house were, if true, insufficient to justify her in the course pursued. According to her own statement she abandoned her husband, while he was at work, without notice or warning to him of her intentions. The only excuse given by her for her unusual conduct was that her husband failed to pay his bills." Our court concludes that the evidence in the case was insufficient to show that the defendant has abandoned his wife without good cause. In State v. Broyer, 44 Mo. App. 393, referring to the Greenup, Fuchs and Brinkman cases, supra, our court repeats that it is absolutely necessary for the State, in a prosecution under this section, to establish that the defendant abandoned his wife "without good cause" and with criminal intent and that he failed and |
