State v. Rotter
State v. Rotter
Opinion of the Court
Defendant prosecutes this appeal, from a judgment of conviction on a charge of wife abandonment.
It is argued the court should have quashed the information on defendant’s motion, for the reason it failed to disclose that it was founded upon the affidavit of defendant’s wife, the prosecuting witness, and is not verified by her; but obviously this argument is without merit, for it appears the prosecuting attorney verified the information under his oath in accordance with the statute. It is true Lillian Rotter, defendant’s wife, lodged an affidavit with the prosecuting attorney, charging defendant with the offense of wife abandonment, and. it is true, too, that this affidavit is not mentioned in the information. But be that ás it may,
The statute (section 5057, R. S. 1909) provides:
“All informations shall be signed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; the verification by the prosecuting attorney may be upon information and belief.”
The information in the instant case is verified by the prosecuting attorney and the facts therein stated are said to be true according’ to his information and belief. It appears from the jurat that the oath was administered to the prosecuting attorney by the judge of the St. Louis Court of Criminal Correction. Manifestly this verification of the information is sufficient and complies in all respects with the statute. The case of State v. Schnettler, 181 Mo. 173, 185, 186, 79 S. W. 1123, is in no wise in point here, for there the information was not verified either by the oath of the circuit attorney or by some person competent to testify as a witness, nor did it appear that it was based upon the affidavit of some person filed with the clerk of the court as required by law. Here, although an affidavit was made and lodged with the prosecuting attorney, that officer, it appears, determined to proceed on his own initative and exhibited the information accordingly verified as the statute requires in such cases.
The only purpose of the statutes in requiring the information to be supported by affidavit of some persons other than the prosecuting attorney is to afford a guaranty of the good faith of the prosecution. The affidavit, when filed, it is said, is not parcel of the in
The information was filed against defendant on November 20, 1912. It charges, in substance, that defendant abandoned his wife, Lillian Rotter, about the 13th day of June, 1910,' without good cause, and has ever since failed to maintain and provide for her, etc. It appears defendant, at the time of the issuance of the information, was a practicing physican, engaged in conducting a hospital at Parsons, Kansas. He had abandoned his wife without good cause' more than two years before, and, though she had diligently searched, she was unable to locate him definitely until shortly before this prosecution was commenced. The evidence is, that defendant came to St. Louis from New York several years ago and was first employed as a conductor on the street cars. During that time he met Lillian Levy and they were married by Rabbi Rosenblatt in October, 1903. Defendant appears to have been an ambitious and sprightly young man and desired to acquire an education in medicine. After the marriage, he, together with his wife, resided with his wife’s parents, the Levys, at 1807 Wash street, where her parents owned a home. They lived there as husband and wife for several years and defendant attended a medical college in St. Louis until his graduation. After having graduated in medicine, he was installed as interne at the Jewish Hospital in St. Louis and received as compensation $30 per month, together
"Witness after witness testified on the part of the State that the prosecuting witness treated defendant at all times with kindness, affection and respect and that she was a good wife to him in every respect; moreover that she and her parents aided him in acquiring his education in medicine. All of this time it is said defendant’s wife was supported by her parents, except for an occasional small contribution on the part of defendant after he commenced drawing salary as. an interne at the Jewish Hospital.
About the first of June, 1910, defendant received an appointment as superintendent of the Female Hospital at St. Louis, but, before he qualified and entered upon the duties of this office, the city authorities called for his resignation. The evidence is not clear as to why his resignation was called for, but it is to be inferred that the authorities learned of his prior conduct with respect to having contracted a marriage in St. Louis, while having a wife living in New York. But be this as it may, defendant resigned the position to which he was appointed and left the city for New York. At this time defendant and his wife were residing on Evans avenue with her sister and brother-in-law, temporarily, and the evidence is, that defendant said he was going to quit his wife, Lillian, because she was no longer in his class. The prosecuting witness testified that defendant, her husband, told her she was not- sufficiently educated for him now that he had evolved into a' doctor and that she would be a millstone about his neck in the future. Another witness says that defendant told him he was going to quit his wife because she was an ignoramus and not cap
The principal matter invoked in defense of the prosecution is to the effect that the parties were not husband and wife at the time of the alleged abandonment on June 13,1910 nor at any time thereafter. The facts touching this matter are as follows:
It appears that defendant had been married before coming to St. Louis in the State of New York and that his wife was still living at the time of celebrating the marriage with Lillian Levy. However, this fact was unknown to the latter at the time. Defendant says he thought his first wife was dead and so proceeded to marry Lillian Levy in October, 1903 in St. Louis. At any rate, it is conceded that Lillian Levy acted in the utmost good faith in attempting to contract a marriage with him in October, 1903, which marriage was solemnized according to the forms of law and the rites of the Jewish religion by the Rabbi
It appears that defendant held her out to the world all that time as his wife and lived and cohabited with her as before; introduced her to numerous different persons as his wife; took her out with him to entertainments and other places as his wife during the years 1906 to June 13, 1910, when he abandoned her. It is true defendant says that he sought to separate himself from her at the time his prior marriage was discovered, in the autumn of 1905, but she threatened to prosecute him for bigamy if he did so; but this evidence is pointedly contradicted by the wife, and she asserts the fact to be that defendant proposed the marriage relation notwithstanding, saying that matter was all over with now; that they would live together as husband and wife and he would treat her as such ever after. She agreed to this proposal and
On these facts, the court found that, though the prior attempted marriage celebrated between defendant and the prosecuting witness by Rabbi Rosenblatt in October, 1903 was void, for that defendant was incompetent to contract matrimony because of the fact that he then had a wife living in New York, the relation of husband and wife existed between the parties in virtue of a common-law marriage consummated after the divorce in 1905.
It is argued that, ás defendant proposed to the prosecuting witness, in 1905, prior to the rendition of the decree of divorce dissolving the former marriage, that they would continue thereafter as husband and wife, and she agreed thereto, no valid contract may be found therefrom, for the reason he was incompetent at the time to consent to such marriage. But in considering this question, it must be remembered that, on the part of the prosecuting witness, the marriage was not meretricious in the first instance — in other words, it was consummated in the utmost good faith. She became his wife, as she thought in 1903, acting in the utmost good faith to that end, and this marriage was
These facts tend not only to show general repute, continuous cohabitation and acknowledgment on the
We see nothing further in the ease that merits discussion. The judgment should be affirmed. It is so ordered.
Reference
- Full Case Name
- STATE OF MISSOURI v. JULIUS ROTTER
- Cited By
- 1 case
- Status
- Published