Opinion
No. 28273.
November 20, 1951. Transferred to Supreme Court. December 21, 1951.
APPEAL FROM THE ST. LOUIS COURT OF CRIMINAL CORRECTION, DIVISION NO. 1, LOUIS COMERFORD, J.
Morris A. Shenker, St. Louis, for appellant.
William J. Geekie, Pros. Atty., and Jasper R. Vettori, Associate Pros. Atty., St. Louis, for respondent.
Defendant was brought to trial in the St. Louis Court of Criminal Correction upon an information charging him with the non-support of his alleged child, Carol Anne, two months of age, who had been born out of wedlock. The prosecution was based upon Section 559.350, R.S.Mo. 1949, and the date of the offense was fixed as July 1, 1950. Defendant was found guilty and his punishment assessed at imprisonment in the workhouse for a term of one year. His appeal to this court has been taken in the usual course.
The prosecuting witness was twenty years of age at the time of the trial in August, 1950. The child had been born on April 26, 1950.
It was an undisputed fact that defendant had not supported the child, and the issue upon which the case was tried was largely one of its paternity.
The state's evidence tended to show that the prosecuting witness had had sexual relations with defendant during the months of July and August, 1949, and had discovered her pregnancy in the following October. According to the testimony of the prosecuting witness, she had then informed defendant of her condition, whereupon he had told her that he would be unable to marry her, but that he would take care of the child. She also testified that she had not had sexual relations with any man other than defendant.
The father of the prosecuting witness corroborated his daughter as to an incident in May, 1950, when defendant had called at their home and in the course of a conversation in regard to his support of the child had allegedly promised to do the best he could. Other than this the child's paternity was not discussed.
The police officer who had made the arrest on July 1, 1950, testified that on that occasion defendant had admitted his responsibility for the pregnancy of the prosecuting witness.
Defendant denied that he had ever had sexual relations with the prosecuting witness until after the time in October that she had discovered her pregnancy. Instead he identified another man whom he claimed had had such relations with her on repeated occasions during the months of June and July, 1949, but who had left St. Louis about the middle of July. In all this he was corroborated by his wife, whom he had married in November, 1949. He admitted his visit to the home of the prosecuting witness in May, 1950, and testified that what he had said to the members of the family was that he would support the child if it could be established that he was the father.
Defendant argues that the judgment of conviction cannot stand for the reason, among others, that irrespective of any question of whether he was actually the father of the child, there was at any rate no showing that he had had its legal care or custody. In other words, he insists that in order to sustain the conviction of a father for failure to support his illegitimate child, it is essential for the state to prove that the father had had its legal care or custody, so that where, as here, the evidence is all one way that he had not had its legal care or custody, there could be no offense within the purview of the statute.
The question is one that has perplexed the courts since the statute was enacted in its present form so far as the matter now in issue is concerned.
In 1921 when the Legislature undertook a substantial change in the law with respect to penal liability for the nonsupport of children, the law had confined the offense to the father's nonsupport of his child or children "born in or legitimatized by lawful wedlock". Sec. 3274, R.S.Mo. 1919. Thus in the case of an illegitimate child there was no penal liability for its nonsupport unless the child had been legitimated by marriage between the father and the mother so that thereafter the child and its father had stood in their relation to each other as though it had been born during the period of wedlock.
Being dissatisfied with a situation which limited the father's penal liability for the nonsupport of his illegitimate child to one that had been "legitimatized by lawful wedlock", the Legislature in 1921 repealed Section 3274, supra, and enacted a new section in lieu thereof which not only imposed liability upon both father and mother, but also extended the offense to the nonsupport of a child or children "born in or out of wedlock". Laws Mo. 1921, p. 281. In other words, in denominating the offense the Legislature dispensed with the necessity that the illegitimate child be legitimated by subsequent marriage between its parents; and in this respect the situation has remained unchanged to the present day.
It is clear that the Legislature, in altering the section as it did, entertained a definite purpose of throwing a greater mantle of protection around an illegitimate child, but the question was still left in doubt as to precisely how far it intended to go in enlarging the putative father's penal liability. Was it meant to be enough to subject him to the penalty of the statute that the state be merely able to prevail in such criminal prosecution upon the issue as to whether he was actually the father of the neglected child; or was it made essential under the statute that in the case of a child born out of wedlock it should be established as a condition precedent to liability that in addition to being the child's father, he had also had its legal care or custody?
The question arises because of the form of language which the Legislature employed in enacting the new section to supplant the one repealed.
The statute provides that if any man or woman shall, without good cause, fail to support his or her child or children under the age of sixteen years born in or out of wedlock, or if any other person "having the legal care or custody of such minor child" shall, without good cause, neglect to support it, then he or she shall, upon conviction, be punished by fine or imprisonment or both.
In construing the statute it could well be argued that the Legislature had intended that a criminal prosecution might lie against one charged to be the father of an illegitimate child, with the question of paternity to be an issue in such proceeding without regard to the complete lack of any prior public acknowledgment or recognition of the child on the part of the putative father, and likewise without any necessity that the putative father should have had the legal care or custody of the child so as to have imposed upon him the duty of support. In this construction of the statute proof of paternity in the criminal prosecution itself would suffice to sustain the conviction of a putative father for the nonsupport of his neglected child, even though, as here, he had never had its care or custody; and it would only be necessary for the state to show legal care or custody as a condition precedent to penal liability where the person charged with the offense was some one other than the father or mother, whose own duty would arise, not from any right of legal care or custody, but from the mere fact of the relationship of parent and child.
On the other hand, it could also be argued that while dispensing with the necessity that the child be legitimated by the marriage of its father and mother, the Legislature had nevertheless not intended that the putative father's duty to support should be thenceforth established upon nothing more than a finding of paternity as an element of the state's case in the criminal proceeding, but that instead the duty to support was to be shown by proof of legal care or custody on the part of the putative father or any other person charged with the offense of nonsupport.
In this connection it could be insisted that even though the phrase "having the legal care or custody of such minor child" appears in the text of the statute only as a qualification of the phrase "other person", the use of the word "other" would necessarily imply that the statute had contemplated the same qualification for any prior person or persons made amenable to its provisions, which could only mean the father or mother of the neglected child. Furthermore this view is heightened by the fact that in 1921, while considering the whole subject of the status of illegitimate children, the Legislature, along with enacting the statute upon which this prosecution is based, made specific provision, Laws Mo. 1921, p. 202, whereby the parents of an illegitimate child, even though living apart, might have an adjudication by the circuit court as to their respective rights and duties in the matter of its custody and control. Those sections now appear as R.S. Mo. 1949, secs. 452.150 and 452.160.
In 1927 the statute came before the Kansas City Court of Appeals for construction, and that court, in an opinion by the late Judge Bland, held that the statute did not require the father of an illegitimate child to support it unless he had its legal care or custody. In other words, absent the putative father's duty to support his illegitimate child, which depended for its existence upon his having its legal care or custody, he could not be guilty of an offense under the statute because of his failure to have provided it with support. State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85.
In 1940 the question was presented to this court, which took the same view of the statute as had the Kansas City Court of Appeals, and in an opinion by the late Judge Sutton reversed the judgment of conviction and discharged the defendant. State v. Barcikowsky, Mo.App., 143 S.W.2d 341.
There was no further occasion for a judicial consideration of this feature of the statute until 1949 when the question once again came before this court for its decision. In that case the court, in an opinion by Judge McCullen, for the first time ruled that the statute did not require that the putative father should have the legal care or custody of his illegitimate child as a condition precedent to penal liability for its nonsupport, and affirmed a judgment of conviction. State v. Williams, Mo.App., 224 S.W.2d 844. In so holding the opinion undertook to distinguish State ex rel. Canfield v. Porterfield by the Kansas City Court of Appeals, and expressly overruled this court's own prior decision in State v. Barcikowsky.
The object of all statutory construction is to seek out and give effect to the legislative intent, which is to be ascertained by recourse to certain rules and principles which are to be invoked for the guidance of the court.
In this case there is a very significant circumstance which impels the conclusion that this court's decision in State v. Williams was wrong and should no longer be followed.
As the statute was enacted in 1921 it was made an offense for any man or woman to fail, neglect, or refuse, without good cause, to provide his or her child or children with "necessary" food, clothing, or lodging. The question arose as to the liability of a parent himself guilty of nonsupport where necessary food, clothing, or lodging was being furnished the child by some other person; and the statute was interpreted to mean that in such event there could be no criminal offense on the part of the parent for the reason that the child would not be in actual need. In other words, it was held that the purpose of the statute was to prevent destitution, and not to provide a means for punishing the parent because of his failure to perform his parental duty. State v. Winterbauer, 318 Mo. 693, 300 S.W. 1071.
To many persons such a result was regarded as undesirable, and in 1947 the then statute, Section 4420, R.S.Mo. 1939, was repealed and a new section enacted in lieu thereof which corrected what was felt to be the injustice under the former statute. Under the new statute it was made an offense if any man or woman, without good cause, failed, neglected, or refused to provide his or her child with "adequate" food, clothing, lodging, and the like, irrespective of whether such child, by reason of the parent's failure, neglect, or refusal, had actually suffered physical or material want or destitution. Laws Mo. 1947, Vol. I, p. 259. Since its enactment in 1947 the statute has remained unchanged except for a slight and inconsequential revision in 1949 under House Bill No. 2149.
From our own standpoint the important thing is that while substantially changing the prior law in the one material respect, the Legislature re-enacted the statute without the slightest change in the provisions which are involved in the present inquiry.
It is a familiar rule of statutory construction that where the Legislature, after a statute has received a settled judicial construction by the courts of last resort, re-enacts it, or carries it over without change, or reincorporates the exact language theretofore construed, it will be presumed that the Legislature knew of and adopted such construction. State ex inf. Gentry v. Meeker, 317 Mo. 719, 296 S.W. 411; State ex rel. Steed v. Nolte, 345 Mo. 1103, 138 S.W.2d 1016; Messick v. Grainger, 356 Mo. 1227, 205 S.W.2d 739.
Applying such rule, which is the product of very real and practical considerations, there would seem to be but little room for doubt that whatever the actual intent of the 1921 Legislature may have been, the 1947 Legislature for its part was satisfied with and approved of the construction which had theretofore been put upon the previous statute, and consequently re-enacted the statute without any change in such respect. Inasmuch as the offense prescribed was a misdemeanor, the Courts of Appeals were the courts of last resort to construe the statute except for the intervention of some unusual circumstance; and the two decisions construing it, State ex rel. Canfield v. Porterfield and State v. Barcikowsky, covered a long period of time during which its provisions had been a frequent matter of public concern. This prosecution is of course based on the statute as re-enacted in 1947 under circumstances implying a legislative intent that there should be no penal liability on the part of the putative father for the nonsupport of his illegitimate child unless he had had its legal care or custody.
Such essential element being absent in the case at bar, it follows that the judgment of conviction should be reversed and the defendant discharged. It is so ordered.
ANDERSON and HOLMAN, JJ., concur.
On Transfer to Supreme Court.
In accordance with the provisions of Article V, Section 10, Constitution of 1945, and of Rule 2.06 of the Supreme Court, the court, on its own motion, after opinion and during the pendency of respondent's motion for rehearing or for transfer, orders this cause transferred to the Supreme Court because of the general interest and importance of the question involved in the case.