Waterford, and he and plaintiff returned to the city of St. Louis, where they again boarded until December 20, 1912. On the lastmentioned date plaintiff again went to visit her parents at Lexington, Ky., where, except for a short trip to St. Louis in November, 1914, to which we shall again refer, she remained until the institution of the suit below, to wit, May 14, 1915.

called upon defendant at his office. It is said that defendant appeared to be angry because his wife had thus come to him, and treated her with indifference. see plaintiff and the children at the boarding house, but, according to the evidence adduced by plaintiff, he did not desire that she remain in St. Louis. In any event, plaintiff and the children returned to Lexington It appears that on December 29, 1912, a day or two later. Up to that time defendshortly after plaintiff reached her parents' ant had been contributing approximately $50 home in Lexington, the child mentioned per month to the support of plaintiff and the above was taken ill with pneumonia. De- children and paying the bills for medical fendant went to the home of plaintiff's par- attention to the children. Thereafter, until ents in Lexington in March, 1913, and, ac- March, 1915, defendant contributed $80 per cording to the testimony for plaintiff, he de- month to the support of plaintiff and her cided it would be better for plaintiff to re- children. In 1913 defendant was receiving main in Lexington until after the birth of a salary of $166% per month, which was inthe second child, which was born August 5, creased to $300, in September, 1914. At the 1913. An operation was performed upon the time of the trial below he was receiving $350 older boy in November, 1913, at which time per month. defendant went to Lexington. He was also there at Christmas, 1913. But from Christmas, 1913, until March, 1915, he visited Lexington but once, and that was in July, 1914, when he was summoned by an imperative telegram from plaintiff's father, though he had or could have obtained free transportation during all of that period.

The evidence in plaintiff's behalf goes to show that after the birth of her second child, in August, 1913, she desired to be with defendant, and urged him to bring her and the children to St. Louis; and that plaintiff's father endeavored to persuade defendant to take his family and provide for them. The evidence is that defendant led plaintiff to believe that he would come to Lexington on or about Labor Day, 1913, and bring her and the children to St. Louis, and that she made preparations therefor, and had her trunk packed expecting to leave for St. Louis, but that defendant did not come; that when defendant came to Lexington, in November of that year, he was not ready to take plaintiff to St. Louis, but said that he would be ready to do so by Christmas; that when Christmas arrived defendant stated that he had been advised "not to change climates with a little baby in the winter," and would take plaintiff and the children to St. Louis in the following spring, but that he did not come to Lexington again until July 4, 191, when he came in response to the telegram sent him by plaintiff's father, mentioned above. It appears that on the lastmentioned occasion defendant was in Lexington but a few hours; and, according to the evidence for plaintiff, he said that he could not have plaintiff and the children in St. Louis "under any consideration" at that time.

In November, 1914, plaintiff came to St. Louis without having apprised defendant of her intention to do so, went with the children to a boarding house at which she and defendant had previously boarded, and then

There is no little testimony in plaintiff's behalf tending to show improper conduct on the part of defendant with other women, and testimony to the effect that defendant drank intoxicants to excess, stayed out late at night, and treated plaintiff with much coldness and indifference. Defendant denies that he conducted himself improperly with other women, denies that he drank intoxicating liquor to excess, or that he remained out late at night except when at work. But as this is not an action for divorce, but one for maintenance, proceeding upon the theory that defendant abandoned his wife without good cause, and refused or neglected to provide for her, much of this testimony is here not of importance. However, there is one phase of the testimony in this connection which has a bearing on the issues here involved.

A witness for plaintiff, a young man named Saxton, who was reared in Lexington, and who knew both plaintiff and defendant, testified by way of deposition that in 1911, or 1912, while temporarily in St. Louis, he had a conversation with defendant, in the course of which he asked defendant when the latter expected to have his wife come to St. Louis; that defendant thereupon said, quoting in part the language of the witness, that he was "in trouble"; that there was "a woman in the case-a little girl"; that he "would know later"; that "if a certain thing came around all right * * he wouldn't have to see a doctor."

On March 15, 1915, and on the following day, both defendant and his mother, Mrs. Redmond, were in Lexington. One of the children was very ill at that time, and defendant had been apprised of his condition by a telegram from the attending physician. Mrs. Redmond reached Lexington Saturday afternoon, some hours before defendant arrived, and after taking quarters at a hotel she went to the home of plaintiff's parents. That afternoon plaintiff told defendant's

when asked if plaintiff could "stay here [in St. Louis] now and make a home," replied, "She cannot, not with me."

[1] Under the evidence adduced plaintiff was clearly entitled to a decree in her favor. And the allowance made her is far from a liberal one, considering defendant's income. [2, 3] The record before us contains what purports to be a finding of facts made by the court prior to entering the decree; and it is argued that the facts so found do not warrant a decree for plaintiff. But this socalled finding of facts performs no function whatsoever in a case of this character. As to the disposition of the case below, we look to the decree alone. And, as is our province and duty, we review the evidence in the record before us and pass judgment here upon the facts, as in equity. And a careful examination of the evidence has fully convinced us that defendant abandoned his wife, and refused and neglected to provide for her, within the purview of section 8295, supra, and that the decree below is for the right party.

mother that a friend had informed her that defendant had ruined a young girl in St. Louis. That evening defendant arrived and went to the hotel at which his mother was a guest. Plaintiff had left a message there, asking him to call her by telephone, which he did. Plaintiff thereupon asked. him to come out to dinner. To this he at first demurred, but went when he learned that some friends would be present; and he and his mother remained there for some hours. It is undisputed that defendant showed no affection for his wife upon this occasion, but treated her with extreme coldness and indifference. That night at the hotel defendant learned from his mother what plaintiff had told her that afternoon, mentioned above. On the following day (Sunday) defendant went to the home of plaintiff's parents. He demanded that plaintiff disclose to him the name of the person who had told her that he had ruined a girl in St. Louis. This plaintiff refused to do. Defendant, in the presence of plaintiff's parents and another witness, told plaintiff that he no longer had any affection for her and would have nothing further to do with her; that he would contribute nothing toward her support, but would make some provision for the children. And he repeated this, in substance, later in a conference with plaintiff's father before leaving the house, at which time he was told by plaintiff's father that the latter thought the report concerning defendant's alleged relations with a young girl in St. Louis had come to plaintiff through Saxton. Thereafter defendant appears to have ignored plaintiff, except that from that time until the filing of this suit he sent her remittances, amounting to $60 per month, to be used ex-Mo. App. 57, loc. cit. 66, 171 S. W. 588, loc. cit. clusively for the support of the children.

The defense proceeds upon the theory that plaintiff was unwilling to live in the city of St. Louis, and that she abandoned defendånt in order to be with her parents at their home in Kentucky; and, such is the tenor of defendant's testimony, though it is far from convincing. The evidence upon this issue greatly preponderates in plaintiff's favor. Defendant asserted that the report concerning his relations with a young girl in St. Louis was false, and denied that he had any such conversation with Saxton as related by the latter. He declared that he was always willing to have plaintiff with him and to make a home for her and the children until March, 1915, at which time he admits that he refused to again live with her, or to contribute anything whatsoever to her support. At the trial plaintiff, in answer to a direct inquiry touching the matter, stated that she still loved defendant, and, in spite of all that had occurred, was willing to live with him. Defendant, on the other hand,

[4] Learned counsel for defendant, appellant here, attack that portion of the decree requiring that defendant pay, in addition to the monthly allowance to plaintiff, necessary medical and dental bills for the children. It is said that in this respect the decree is too broad and in contravention of the statute. In this we think that counsel are in error. This portion of the decree requires defendant to do nothing more than that which is his legal duty as the father of these children. See Rankin v. Rankin, 83 Mo. App. 335, McCloskey v. McCloskey, 93 Mo. App. 393, 67 S. W. 669, and La Rue v. Kempf, 186

590. It is true, as appellant's counsel point out, that the statute provides that "as long as said maintenance is continued, the husband shall not be charged with the wife's debts, contracted after the judgment for such maintenance." But we think that this provision in the decree cannot be said to have the effect of making defendant chargeable with his "wife's debts."

This portion of the decree was doubtless so drawn because of the impossibility of estimating, with any degree of precision, the amount of a proper allowance for expenses of the character mentioned. Its effect is merely to leave defendant still chargeable with reasonable expenses of this nature, necessarily incurred. In any event, we do not see that appellant has any just cause to complain thereof. In this connection, see Smith v. Smith, 193 S. W. 895.

The judgment is accordingly affirmed.

REYNOLDS, P. J., and BECKER, J., con

cur.

(199 Mo. App. 416)

STATE v. GOLDMAN. (No. 15061.)
(St. Louis Court of Appeals. Missouri. Sub-
mitted on Record April 3, 1918. Opinion
Filed May 7, 1918.)

1. CRIMINAL LAW 1090(1)-APPEAL-AB-
SENCE OF BILL OF EXCEPTIONS-REVIEW.
On a criminal appeal, in the absence of bill
of exceptions, the Court of Appeals is confined
to an examination of the record proper.
2. INDICTMENT AND INFORMATION 110(16)-
LOTTERIES-SUFFICIENCY OF INFORMATION-
-FOLLOWING LANGUAGE OF STATUTE.
Information charging that defendant will
fully and unlawfully did sell, to a person whose
name was unknown to the informant, a certain
ticket and part of a ticket in a lottery and
device in the nature of a lottery known as
"country store," contrary to the form of the
statute, etc., substantially following the lan-
guage of Rev. St. 1909, § 4771, was sufficient.
3. CRIMINAL LAW 1144(1)-APPEAL-AB-
SENCE OF BILL OF EXCEPTIONS-PRESUMP-

TIONS.

and nothing but the entries above referred to. This confines us to an examination of the record proper, which here consists of the information, finding or verdict and judgment.

[2] This proceeding is under section 4771, Revised Statutes 1909, which provides:

"Any person who shall sell or expose to sale, or cause to be sold or exposed to sale, *** or shall aid or assist, or be in anywise concerned in the sale or exposure to sale of any lottery ticket or tickets, *** or device in the nature of a lottery, within this state or else* and shall be convicted thereof where, * in any court of competent jurisdiction, shall, for each and every such offense, forfeit and pay a sum of not exceeding $1,000."

*

It will be observed that this information, in charging that the defendant "wilfully and unlawfully did sell * a certain ticket and part of a ticket in a lottery and device in the nature of a lottery, known as Country Store,'" etc., substantially follow

On a criminal appeal, in the absence of bill of exceptions bringing up the evidence, the Court of Appeals is confined to the single ques-ed the language of the statute. tion whether the information will support the judgment of conviction, for it must assume that the evidence and course of trial justified the finding and judgment, if the information charged the commission of an offense.

It was long ago decided by our Supreme Court, as see Freleigh v. State, 8 Mo. 606, that where the charge in the information, a misdemeanor, is in the very language of No decisions

4. CRIMINAL LAW 1090(5)-APPEAL-SUF- the statute, it is sufficient. FICIENCY OF INFORMATION-BILL OF EXCEP

TIONS.

overturning that have been called to our attention, or of which we are aware, have To enable the Court of Appeals to consider the sufficiency of an information, it is not neces-ever disturbed that. We therefore hold that sary that there be a bill of exceptions. the information in this case is sufficient.

REYNOLDS, P. J. The appellant in this case was proceeded against in the Court of Criminal Correction of the city of St. Louis on an information which charges that in the city of St. Louis, on November 19th, 1914, he "wilfully and unlawfully did sell to a person whose name is to this informant unknown, a certain ticket and part of a ticket in a lottery and device in the nature of a lottery, known as 'Country Store,' contrary to the form of the statute," etc. Arrested and arraigned, defendant pleaded "not guilty," and his counsel, along with the prosecuting attorney, filed an agreed statement of facts, which statement of facts, it is set out, is taken by the court as submitted. The cause was continued from time to time and resulted in the court finding and adjudging the defendant guilty and assessing his punishment at a fine of $50.00. It is stated that a motion for new trial was filed and overruled, as also a motion in arrest of judgment, and thereupon the fine was duly adjudged and imposed upon defendant, who prayed an appeal to our court.

[1] We have before us no bill of exceptions

[3] In the absence of a bill of exceptions, bringing up the evidence, as is the case here, we are confined to the single question of whether the information will support the judgment; for we must assume that the

evidence and course of the trial justified the finding and judgment, if the information charged the commission of an offense. Here that is challenged.

[4] To enable us to consider the sufficiency of an information it is not necessary that there be a bill of exceptions. We examine an information on appeal without that, and here conclude that the information is sufficient.

Finding no error in the record proper it follows that the judgment of the Court of Criminal Correction must be and it is affirmed.

CRIMINAL LAW 1090(16) — APPEAL — AB-
SENCE OF BILL OF EXCEPTIONS MATTERS
NOT REVIEWABLE.

of exceptions, the Court of Appeals cannot re

On a criminal appeal, in the absence of bill

view overruling of motion for new trial or the giving and refusal of instructions.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from St. Louis Court of Criminal | grants and punished as such, an information, Correction; Calvin N. Miller, Judge.

charging defendant with refusal to provide his wife and two children with the necessary food "Not to be officially published." and clothing for their maintenance and supWilliam Goldman, charged with Robert port, is not bad for indefiniteness and uncerSherwood of unlawfully selling a lottery ticket, was convicted, and appeals. Affirmed. Paul Dillon, of St. Louis, for appellant. Howard Sidener, of St. Louis, for the State.

of the family and discharge of the domestic duties, there is a difference in all of them distinguishing them from each other and from the quoted clause of the vagrancy statute, and we are unable to conclude that the provision in section 4789, declaring every able bodied married man, who shall neglect or refuse to provide for the support of his family, shall be deemed a vagrant and punished accordingly, has been superseded or affected by these various sections and their

an able bodied man, did unlawfully neglect
and refuse to provide for the support of his
family, in this, the said defendant did wil-
fully neglect to provide for his lawful wife
Mary Riesenmy and his lawful children, to-
wit; Helen Riesenmy aged fifteen years and
Dorothy Riesenmy aged thirteen years, the
necessary food and clothing for their main-
tenance and support, but left them wholly
destitute of the same and in a condition of
suffering and want." It is true that the in-
formation contains more than the statute | amendments.
requires but the essential parts of the stat-
ute are correctly set out. That the informa-
tion may contain surplusage, does not viti-
ate it and certainly this surplus matter af-
fords the defendant no ground for complaint,
in that it makes the allegation of neglect or
refusal to provide for the support of the
family more definite by specifying exact-
ly who of his family are involved. We do
not think that any of the points alleged
against this information are tenable.

[4] The second point made by learned counsel is that the vagrancy statute (section 4789, Revised Statutes 1909), in its provisions as to the neglect and refusal by able bodied married men to provide for the support of their families, has been superseded by express legislation upon the same subject. Counsel refers to sections 4492 and 4495, Revised Statutes 1909, the latter as amended by the Act approved March 30th, 1911 (Session Acts 1911, p. 193), as the statutes or sections superseding section 4789. Learned counsel for appellant has certainly submitted a very strong brief and argument in support of this position, going into an elaborate examination of the origin and progress of the vagrancy statute, supra, and of the enactments relating to marital and parental duty. We are unable, however, to concur with him in the deduction he draws, that by these various enactments the vagrancy statute, so far as relates to the paragraph here involved, has been repealed.

In State v. Tietz, 186 Mo. App. 672, 172 S. W. 474, we went into an examination and consideration of these several sections and acts referred to and now claimed as repealing the vagrancy statute, not, however, with that point in mind. We refer to what we have said in connection with the history of this line of legislation to the above case.

Again in State v. Burton, 178 S. W. 219, a

[5] The third point made by learned counsel for the appellant is that the evidence is wholly insufficient to support the charge and that the defendant's demurrer to it should have been sustained. In the case at bar the State, offering the wife as a witness, she was excluded on objection by the defendant. Necessarily, this confined the testimony as to the failure to support to that of witnesses, who could testify from their acquaintance with the life of the wife and their knowledge of the family conditions. There was testimony on the part of the State of the marriage and birth of children, and to the effect that the wife, during four or five years past, had been working at the different department stores and had kept boarders to support herself and family. Some of these witnesses had aided the wife in a material way during the past four or five years, lending her money to pay for her rent and living expenses. A daughter, thirteen years of age, testified that her mother had been working for the last four or five years; that she kept boarders; that as far as this daughter, she a member of the family, knew, defendant had contributed nothing whatever to the support of the family, nor had she any knowledge of the defendant having given her mother (his wife) anything for the support of herself, sister, or her mother, during that time. To her knowledge defendant had not been at home since she could remember, she at the time of testifying, being thirteen years of age, living all her life in St. Louis with her mother and sister. This was evidence warranting the trial court in arriving at its

conclusion that the defendant had violated the statute.

Burton Cases were held to take those defendants from the imposition of the penal

None of the facts which in the Tietz and

ties imposed by section 4789, supra, are here

decision not to be officially reported, we considered to some extent the scope of the vapresent. The defendant introduced no evigrancy statute. Our conclusion in that case dence whatever, but submitted his case on was approved by the Supreme Court under the evidence introduced by the State. If the same title of State v. Burton, 267 Mo. 61, he had any valid reason for not doing so, 183 S. W. 315. These cases cited contain it was for him to show. He offered no evsuch a full discussion of this vagrancy stat-idence.

ute and of what are claimed to be correlative Finding no reversible error to the prejulaws, that we do not think it necessary to dice of the defendant, the judgment of the go into it any further, contenting ourselves circuit court is affirmed. with holding that while in a measure they look to the same end, that is the proper care

ALLEN and BECKER, JJ., concur.