State v. Thomas

Appeal from a conviction for wife abandonment.

The charging part of the information is as follows: "That Everett Thomas on or about the 2nd of July, 1921, at the said County of Shannon, State of Missouri, did then and there, being the lawful husband of one May Thomas who was then and there his lawful wife, did unlawfully, knowingly and wilfully and without any good cause whatever abandon and desert, fail, neglect and refuse to support her, the said May Thomas, and from the said second day of July, 1921, did, unlawfully, wilfully and without good cause, fail, neglect and refuse to maintain and provide for her, the said May Thomas, against the peace and dignity of this State."

This information is assailed on the ground that it is multifarious, the claim being that two offenses — abandonment and failure to support — are charged in the same action. No motion to quash was filed and no attack upon the information made before the trial and since the two charges, if they be considered as two separate offenses, are not repugnant to each other and entail the same punishment, the information must be held good after verdict. [State v. Klein,78 Mo. 627; State v. Harrison, 62 Mo. App. 112, 115.]

The information, however, is not open to the objection of being multifarious. The present statute, Acts of 1921, page 281, makes it a misdemeanor for a man without good cause to abandon or desert his wife or fail, neglect or refuse to maintain and provide for her. It is contended that the abandonment without good cause constitutes one offense and failure or refusal to support without good cause is another offense and therefore the two cannot be joined in the same count. While the two acts of abandonment and failure to support are separate acts and in one sense may be considered as separate offenses, yet they are both found in the same section of the statute and both grow out of a man's disregard of his marital duty to his wife and but one punishment is provided in the statute defining the offense and since the disjunctive "or" instead of the conjective "and" is used in connecting the two acts, it is clear that the Legislature meant that either act denounced by the statute would subject the offender to the punishment therein provided and there is nothing in the act to warrant a duplicate penalty if he should commit both acts. He cannot therefore be charged in separate counts and a separate punishment assessed for each act, which could be done if appellant's contention should be upheld. Criminal statutes are to be strictly construed in favor of the accused and where different acts are prohibited by the same section of the statute and but one punishment provided, it is usually, if not universally, held that but one offense is defined and while a party may be convicted on proof of the commission of one of the forbidden acts only, yet if he be proven to have committed all of them, he is still guilty of but one offense and cannot have more than one penalty assessed against him. [State v. Murphy,47 Mo. 274; State v. McWilliams, 7 Mo. App. 99; State v. Young, 163 Mo. App. 88, 98, 146 S.W. 70; State v. Miller, 188 Mo. 370, 377, 87 S.W. 484; St. Louis v. Theatre Co.,202 Mo. 690, 698, 100 S.W. 627.]

Objection is made here that the offense in the case should have been restricted to what occurred since the Act of 1921 went into effect which was on June 20, 1921, or if the prosecution was under the statute prior to the amendment in 1921, then the testimony should have been confined to time prior to that date. That question is not before us for the reason that the question was not raised in the trial court. No motion to require the State to elect was filed. No objection to testimony on that ground was made and no instruction on that point asked.

It is contended by appellant that no case was made by the State for the reason that there was no evidence that either the abandonment or the failure to support was without good cause. This contention seems to be well founded. It seems to be the well settled rule in this State that in criminal, as well as civil cases, when it is necessary to allege a negative and the existence of that fact is not peculiarly within the knowledge of the accused, then the negative allegation must be proven the same as any other fact. [State v. Greenup, 30 Mo. App. 299; State v. Brinkman, 40 Mo. App. 284; State v. Boyer, 44 Mo. App. 393; State v. Bruening, 60 Mo. App. 51; State v. Doyle, 68 Mo. App. 219; State v. Satchwell, 68 Mo. App. 39; State v. Teitz,186 Mo. App. 672, 172 S.W. 474; State v. Anderson, 189 Mo. App. 611, 175 S.W. 259.]

It would have been an easy matter for the State to have shown by the wife how she had treated her husband and whether or not he had good cause to abandon her. The State could also have shown the ability of defendant to support his wife but no evidence was offered on either of these questions. The abandonment and refusal to support were both very clearly shown but there was no evidence that either of these occurred without good cause.

The judgment will be reversed and cause remanded. Farrington,J., and Bradley, J., concur.