Opinion
December 12, 1927.
1. CHILD: Abandonment. The statute (Sec. 3274, Laws 1921, p. 281) declaring that "if any man or woman, abandon or desert or shall, without good cause, fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child, born in or out of wedlock, under the age of sixteen years," etc., does not penalize a father who fails to supply his infant child with food, clothing and lodging amply provided with those things by his wife's father, to whom he has sent her and the child.
2. ____: ____: Venue. Where defendant, a resident of St. Louis, voluntarily sent his wife and his infant child, from Illinois, where they then resided, to live with her father in Oregon County, the venue of a prosecution of the father for the neglect and failure to supply the child with food, clothing and lodging, is in Oregon County.
3. ____: ____: Information: Motion to Quash. An information charging only that the defendant did unlawfully, wilfully and without good cause fail, neglect and refuse to maintain and provide for his infant child does not charge that he failed, neglected or refused to provide the necessary food, clothing and lodging for his child, and does not therefore charge a violation of the statute (Sec. 3274, Laws 1921, p. 281); and as such error appears upon the face of the information, it will be noticed as a matter of course on appeal, even though no motion to quash be preserved in the bill of exceptions, or there be no bill at all.
Corpus Juris-Cyc. References: Courts, 15 C.J., Section 518, p. 1092, n. 63. Criminal Law, 16 C.J., Section 263, p. 187, n. 35; 17 C.J., Section 3421, p. 136, n. 35. Parent and Child, 46 C.J., Section 221, p. 1359, n. 17.
Transferred from Springfield Court of Appeals.
REVERSED AND DEFENDANT DISCHARGED.
Freeman L. Martin for appellant.
(1) The court erred in overruling appellant's demurrer at the close of the whole case. State v. Weber, 48 Mo. App. 500; State v. Shuey, 101 Mo. App. 438; State v. Miller, 90 Mo. App. 131; State v. Beims, 212 Mo. App. 222; State v. Christopher, 267 S.W. 62. The charge and proof in a prosecution under Section 3274, Laws 1921, p. 281, for abandonment and failure to support one's child, must show that the child is actually in need of the necessary food, clothing or lodging. State v. Hartman, 259 S.W. 513. (2) The evidence conclusively showed that the final separation, after which the prosecutrix and appellant never lived together, took place in East St. Louis, Illinois; and the offense, if any, is one against the laws of the State of Illinois and not against the laws of Missouri. State v. Christopher, 267 S.W. 62; State ex rel. Delevan v. Justus, 58 Minn. 114; Cuthberton v. State, 72 Neb. 727. The venue laid in Oregon County, in which the evidence conclusively shows that the appellant was never in until after his arrest on November 28, 1925, is the wrong venue, and the Circuit Court of Oregon County is without jurisdiction of the subject-matter of the amended information or of the appellant. (3) The father cannot lawfully be convicted of failure to support his minor child where the evidence shows that on date on which the offense is alleged to have been committed the child was amply supplied with food, clothing and lodging. State v. Thornton, 232 Mo. 298; State v. Tietz, 186 Mo. App. 672; State v. Hartman, 259 S.W. 513; State v. Menkens, 266 S.W. 1004.
North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The information is sufficient to charge the crime of abandonment of child. Laws 1921, p. 281, sec. 3274; State v. Hartman, 259 S.W. 513. The information is insufficient to charge the failure and neglect to provide for the child, since it does not specify the articles, the failure to provide which is the essence of the crime. State v. May, 256 S.W. 527; State v. Tiemann, 253 S.W. 453. Hence the information is not bad for a multifariousness in charging abandonment and failure to support in the same count, especially in the absence of the preservation of a motion to quash. State v. Thomas, 240 S.W. 857; State v. Henggeler, 278 S.W. 743. (2) The welfare and the condition of the child as an element of the crime. Under Laws 1921, p. 281, sec. 3274, it is not necessary for the State to show as an element of the crimes therein defined, that the child's life or health is endangered, nor is the fact that the child is being supported by others a sufficient defense. There is nothing in this section which refers either directly or indirectly to the welfare of the child. State v. Beims, 253 S.W. 420; State v. Hartman, 259 S.W. 513. State v. Thornton, 232 Mo. 298, upon the authority of which the Hartman case was decided, does not apply, being a prosecution under an entirely different section. Neither does State v. Tietz, 186 Mo. App. 672, nor State v. May, 256 S.W. 527, sustain the contrary position. There are statutes looking to the condition and welfare of the child but this cannot be said of Section 3274. See Secs. 3271, 3273, R.S. 1919 (the latter section amended by Laws 1921, p. 281). (3) The venue was properly laid in Oregon County. There is no hard-and-fast rule for fixing the venue of crimes of this character. If the appellant by his conduct has made it necessary for the wife and child to establish a separate domicile, the venue may properly be laid in the county of the residence of such wife and child. State v. Hobbs, 291 S.W. 184. (4) The motion to quash the information is not preserved in the record and therefore cannot be reviewed.
An amended information, filed in the Circuit Court of Oregon County on December 11, 1925, charged that at and in said county, on or about the — day of December, 1924, the defendant, being then and there the father of a child born in lawful wedlock, under the age of fifteen years, to-wit, Vera LaVerne Winterbauer, aged two months, unlawfully, wilfully and without good cause did abandon said child and from the — day of December, 1924, to the — day of November, 1925, and thence hitherto, did then and there unlawfully, wilfully and without good cause, fail, neglect and refuse to maintain and provide for her, the said Vera LaVerne Winterbauer, his said child as aforesaid, against the peace and dignity of the state.
On a trial the defendant was found guilty and his punishment assessed by the jury at a fine of $100. He appealed to the Springfield Court of Appeals where the judgment was reversed and the defendant discharged. That court deeming its opinion to be in conflict with the conclusion reached by the St. Louis Court of Appeals in State v. Beims, 212 Mo. App. 221, 253 S.W. 420, the cause was certified to this court for final disposition as provided by Section 6 of the Amendment of 1884 to the Constitution.
Section 3274, Laws 1921, p. 281, provides:
". . . or if any man or woman shall, without good cause, abandon or desert or shall, without good cause, fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child or children born in or out of wedlock, under the age of sixteen years . . . he or she shall upon conviction, be punished by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment."
The evidence for the State is that May Brawley, the mother of the child, born November 9, 1924, was married to the defendant in East St. Louis, Illinois, May 1, 1924. Their first act of sexual intercourse was on February 28, 1924. After their marriage the defendant and his wife lived together only a few days. The defendant, failing to provide his wife a home, sent her to her father, George Brawley, in Oregon County, where she has continued to live since the spring of 1924. The defendant, who lived in St. Louis, Missouri, was employed there as an automobile mechanic and was able to provide food and clothing for his child, but contributed nothing to her support or that of his wife. George Brawley, however, gave them a home and provided for them. The child has never lacked for either food or clothing. On March 23, 1925, the defendant wrote his wife from St. Louis:
"I am writing this to answer your many letters. I am divorced from you and want nothing more to do with you and stop writing me, as this is finalely."
I. State v. Thornton, 232 Mo. 298, 134 S.W. 519, was a prosecution based on Section 4492, Revised Statutes 1909, for the failure of the defendant Thornton to provide his Application infant children with necessary food, clothing and of Statute. lodging. The statute referred to, so far as applicable, reads:
"If any mother of any infant child, under the age of sixteen years, or any father of any such infant child, born in or legitimatized by lawful wedlock . . . shall, without lawful excuse, refuse or neglect to provide for such infant . . . necessary food, clothing or lodging . . . the person so offending shall, upon conviction, be punished," etc.
The provision of this section as to neglect or refusal of a parent to furnish necessary food, clothing or lodging for his or her infant child is substantially the same as that in Section 3274, Laws 1921, p. 281. The evidence for the State showed the children were amply supplied with food, clothing and lodging by the wife's father. On page 305 the court said:
"The statute penalizes the refusal of the father to supply necessary food, etc. Under this law pertaining to necessaries, a necessary article is one which the party actually needs. It is not enough to show that the article is per se classed as necessary, such as food and clothing. It must also be needed at the time."
And on page 306:
"The Legislature did not enact this law for the purpose of punishing parents for failure to do their duty as such. Such a purpose would smack too strongly of paternal government. The only legitimate object of the statute is to secure to infants, who are in future to become citizens of the State, proper care; such care as is necessary to protect their lives and healths. In other words, to prevent destitution.
"It follows from the foregoing that if infant children are receiving necessary food, clothing and lodging from any source, there is no occasion for the State to interfere by penal law or otherwise."
The Springfield Court of Appeals in its opinion adopted the construction given the statute in the Thornton case, holding that as it appeared the child was provided with necessary food, clothing and lodging by its grandfather, the conviction could not be sustained and it accordingly reversed the judgment and discharged the defendant.
In State v. Beims, 212 Mo. App. 231, 253 S.W. 420, the St. Louis Court of Appeals said:
". . . and the mere fact alone that the child was being supported and cared for by friends, relatives, or by charitable institutions, would not excuse any man or woman from discharging the duty imposed upon them by law."
We think this ruling is opposed to the opinion in the Thornton case.
II. The defendant never lived in Oregon County and it was contended that the circuit court of that county was Venue. without jurisdiction of the offense charged. The defendant voluntarily sent his wife to live with her father in Oregon County. His duty to support and provide for her and his child when born followed them wherever he sent them. In State v. Hobbs, 291 S.W. 184, a similar prosecution, based on this statute, the mother of the infant children found it necessary to remove to Cape Girardeau County where she resided with her children for three years. It was contended that the venue was in Stoddard County where the defendant, the father, lived with his second family. The court said:
"In the instant case, we think, the venue may be properly laid in Cape Girardeau County where the children were residing, and where, it is alleged, they were being neglected by the father in the necessities of life. It was there they were receiving no such contribution as the law requires the parent to furnish them. Of course, if the offense alleged were for abandonment, a different situation would be presented, as abandonment generally, if not always, occurs at one definite place." [L.c. 185.]
The Springfield Court of Appeals cites many cases supporting this view. We think the venue was properly laid in Oregon County.
III. Error was assigned because the trial court overruled a motion to quash the information. The Court of Information. Appeals declined to pass upon this assignment because the motion to quash was not preserved in the bill of exceptions. The statute denounces a penalty on any man or woman who shall without cause "fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child born in or out of wedlock, under the age of sixteen years," etc. The information charges that the defendant did unlawfully, wilfully and without good cause fail, neglect and refuse to maintain and provide for her, the said Vera LaVerne Winterbauer, his child, etc. It does not charge that the defendant failed, neglected or refused to provide the necessary food, clothing or lodging for his child. Hence the information does not charge a violation of the statute in this respect and is insufficient. This error appears upon the face of the record and "will be noticed as a matter of course even if there is no bill of exceptions filed." [Kelley's Crim. Law, sec. 462; State v. Coyne, 214 Mo. 359, 114 S.W. 8; State v. Meyers, 99 Mo. 107 (3); State v. Burke, 151 Mo. 140, 52 S.W. 226; State v. Young (Mo. App.), 215 S.W. 499 (2), 500.]
The judgment is reversed and the defendant is discharged. Davis and Henwood, CC., concur.
The foregoing opinion by HIGBEE, C., is adopted as the opinion of the court. White, P.J., and Blair, J., concur; Walker, J., dubitante.