Opinion
5 Div. 780.
December 10, 1929. Rehearing Denied January 7, 1930.
Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.
Calvin Patterson was convicted of willful neglect or failure to support his child, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Patterson v. State, 127 So. 793.
Lawrence F. Gerald and J. B. Atkinson, both of Clanton, for appellant.
The father of a bastard child is under no obligation, either at common law or by statute, to provide for the support or maintenance of such child. Ward v. Mathews, 122 Ala. 192, 25 So. 50; Lewis v. Crowell, 210 Ala. 199, 97 So. 691.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
This is a proceeding, or prosecution, instituted against appellant, by the mother of the child, for failing to provide for his dependent infant daughter, admittedly less than 18 years of age, under the provisions of chapter 157 (sections 4479 to 4495) Code of Alabama of 1923.
The bill of exceptions contains the following rather remarkable recitals, as a part of the agreed statement of facts, upon which the cause was tried in the court below, and upon which it is to be adjudicated here on appeal:
"It is further agreed, for the purpose of this suit, that the marriage of said prosecutrix and Calvin Patterson was void, and that said child is the child of said Calvin Patterson, and that said child is illegitimate, and that said defendant, Calvin Patterson, being the father of said child, and within twelve months before the commencement of prosecution, in Chilton County, Alabama, willfully neglected or refused or failed to provide for the support and maintenance of said child, and that said child was then and there in destitute or neglected circumstances."
Appellant's counsel in an ably prepared brief, filed in this court, argue forcefully that, the "child" in the case being illegitimate, there is no legal duty on the father to support her, but that such support as can be required of him must be obtained in the mode prescribed by the statute for bastardy proceedings. Chapter 85 (sections 3416 to 3439), Code of Alabama of 1923. What they argue in this respect appears to have been sound law until the "establishment and promulgation" of section 4479 (written by the Code commissioner and approved by the Legislature as a part of the Code) of the Code of Alabama of 1923, the same becoming effective on August 17, 1924. Ex parte Newsome, 212 Ala. 168, 102 So. 216.
This section 4479 of the Code of Alabama 1923, in effect when the matters, things, actions, and proceedings involved in, and concerned with, this case, arose, or were begun, provides as one of the definitions of the word "parent", as used in chapter 157 of the Code of Alabama of 1923, the chapter sometimes said to deal with the offenses of "Desertion and Nonsupport," the following: "* * * And the father of such child or children, though born out of lawful wedlock."
So it would appear, and we hold, that, regardless of any confusion that may arise by virtue of there now, and since August 17, 1924, being in existence two ways, one under the bastardy statutes (chapter 85 of the Code of 1923) and the other under the "Desertion and Nonsupport Statutes" (chapter 157 of the Code of 1923), by which to call to account the father of an illegitimate child, yet there are two, and under the plain provisions of this section 4479 of the Code of Alabama of 1923, and under the "agreed statement of facts," we hold that this proceeding was properly instituted against this appellant in the manner shown, and that the judgment of conviction from which this appeal is taken should be, and is hereby, affirmed.
Affirmed.