#### The State of Missouri, Respondent, v. Henry L. Good, Appellant.

Kansas City Court of Appeals,

November 9, 1891.

Criminal Law: trial : other offenses. On the trial of an indictment for abandoning his wife, it is error to advise the jury that defendant had on a prior occasion been indicted for seduction under promise of marriage, etc.

*Appeal from, the Cooper Circuit Court,*— Ron. E. L. Edwards, Judge.

Reversed and remanded.

*516*John Cosgrove, J. II. Johnson*and *Draffen &*Williams, for appellant.

(1) It has been expressly held, that testimony as to a former prosecution of defendant for seduction of the woman, whom he subsequently married, was inadmissible, where defendant was upon trial for wife abandonment. The admission of such evidence was declared erroneous, and ground for reversal. “It was a matter wholly distinct from, and independent of, any connection with, the present charge.” Testimony relating to a former prosecution for seduction was held not admissible on any grounds. *State v.*Wonderly, 17 Mo. App. 597. (2) It was reversible error for the prosecuting attorney in his opening statement to detail facts, that were incompetent, and could not be proved on the trial. His reference, over the objection of the defendant, and without rebuke from the court, to the fact, that the defendant had been indicted and tried for the seduction, and that this case originated out of that, was prejudicial error. 1 Thompson on Trials, secs. 263, 264, 266 ; Wharton’s Criminal Pleading & Practice [8 Ed.] sec. 560.

*B. D. Shackelford,*for respondent.

It devolved upon the state to show, not only that the defendant had abandoned his wife, but that he had ♦done so without good cause. In order to do this, it was necessary and competent to inquire into all the circumstances connected with the abandonment. If the defendant married his wife to avoid the penalties of a criminal seduction, and had it in his mind at the timé to abandon her afterward, and did afterward, within seven weeks, abandon her, in accordance with the intent he had at the time of the marriage, it would be competent for the state to show it. The case of State v. Wonderly, 17 Mo. App. 597, relied upon by counsel for the defendant, does not militate against this position. *517In that case the court did not hold that, as a general rule, such evidence was incompetent; but, in that case, it had the exceptional effect of causing the jury to inflict an exorbitant punishment.

Gill, J.

Defendant was indicted for abandoning and failing, neglecting and refusing to support his wife and infant child. On a trial before jury he was convicted, and his punishment fixed at six months’ imprisonment in the county jail and afine of $500, as provided for in section 8501, Revised Statutes, 1889. The defendant appealed.

A review of this record forces us to conclude that defendant did not have that fair and impartial trial to which he is entitled under the law. In the course of the trial, and in the presence of the jury, the state was, over defendant’s objections, allowed repeatedly to advise the jury that defendant had on a prior occasion been indicted for seduction under promise of marriage, etc. Such matter had nothing to do with the offense here charged, was foreign to the issues made, and its introduction only tended to prejudice the jury.' Wharton’s Crim. PI. & Pr., sec. 560; 1 Thompson on Trials, secs. 263, etc.; *State*v. *Wonderly,*17 Mo. App. 597.

Judgment reversed, and cause remanded.

All concur.