Opinion
No. 30449.
March 13, 1933.
PARENT AND CHILD.
Father, who had deposited in bank to credit of two children under sixteen years of age approximately five hundred dollars, available to them, could not be convicted of neglecting to provide for their support (Code 1930, section 861).
APPEAL from circuit court of Lamar county. HON. J.Q. LANGSTON, J.
E.F. Coleman, of Purvis, and Robt. Genin, of Bay St. Louis, for appellant.
The meaning of the law with reference to destitute and necessitous circumstances is that the wife or children must have been left in a condition of extreme want — without possessions or resources from which the actual necessaries of life could be obtained or realized. It is not necessary for conviction to show that the deserted ones were in dire poverty and distressful want; but, in order to come within the meaning of the statute, it must appear that they are substantially destitute or without means of securing the reasonable necessities of life, and unless the proof establishes this condition, the offense is not committed under the law.
Moorman v. State, 93 So. 368.
The defendant placed money in a savings account to the credit of the minors to such an extent that they had sufficient funds from his efforts to place them in a safe condition for a long time. They were not destitute. It was their duty to use this money that he, the appellant, gave them for the necessities of life, and save themselves from becoming destitute.
When a man placed ample funds to the credit of his children in a savings account, at a solvent bank, subject to their disposal, as this defendant has done to the extent that they each have ample funds, and he having no further funds to give them for their support, having fully and most conscientiously carried out that duty, then it would not be right, fair and reasonable to send this man to the penitentiary, when his ability to produce has failed.
W.D. Conn Jr., Assistant Attorney-General, for the state.
It is necessary to show that the desertion and the refusal to support is wilful. The word "wilful," as used in the statute, means that it must be shown that the neglect or refusal was with a stubborn purpose and without justifiable excuse. Page v. State, 133 So. 216.
It is the duty of the defendant to provide for the support and maintenance of the two children in question and he cannot escape his responsibility in this regard simply by having money placed in a savings account to the credit of the minors in question. Money in a savings bank that cannot be availed of for support and maintenance does a starving child mighty little good. The duty of a parent is to clothe, feed and provide the necessities of life for a child, not putting money in a bank which cannot be reached for that purpose.
Even though appellant did put the money in the bank, it was just as though he had never done anything, because it could not be reached by the children in need.
Appellant was indicted and convicted in the circuit court of Lamar county for an alleged violation of section 861, Code 1930, which section reads as follows: "Any parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction thereof, shall be punished by a fine of not less than twenty-five dollars, nor more than five hundred dollars, or by imprisonment in the penitentiary not exceeding two years, or both, in the discretion of the court."
It is enough to say of this case that from time to time before this indictment was returned, the defendant had placed to their credit, in a bank near the home of his two children, a sum of approximately five hundred dollars, and this money was there at the time of the trial, and was, and for some time theretofore had been, available to the two children on allowances to be made therefrom by the chancellor in vacation. In that locality the sum mentioned would be considered a substantial and sufficient amount, if properly expended, to take care of the needs of the children for the time being and for some months to come. The very facts therefore show that the appellant was not guilty of a violation of the statute. He and his wife had been divorced and she had taken the children to another county, and as we have already mentioned, a considerable sum of money had been placed by appellant at the service of the children by taking the proper steps, the money having been properly deposited so as to safeguard it. The case, Moorman v. State, 129 Miss. 864, 93 So. 368, shows the purpose of this statute, and that a prosecution under it was not justifiable under the facts of this record.
Reversed, and appellant discharged.