Opinion
December 4, 1953.
Appeal from the Circuit Court, Perry County, Courtney C. Wells, J.
S.M. Ward, Hazard, for appellant.
J.D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.
Appellant, Melvin Shepherd, was indicted by the Perry Circuit Court, charged with the crime of "deserting and abandoning his children, without complying with the orders of the Perry Circuit Court, as set forth in the judgment * * * relative to the custody and support of said children, * * *." This offense is denounced by KRS 435.240(3). A demurrer to the above indictment having been overruled, trial was had, and a verdict of guilty was rendered and a sentence of one year in prison imposed.
The evidence in this case and the statute relied upon for conviction are in effect the same as those appearing in Commonwealth v. O'Harrah, Ky., 262 S.W.2d 385. In that opinion this Court declared, and set forth the reasons why, 435.240(3) is unconstitutional. The O'Harrah case fully discusses the question before us and we deem it unnecessary to repeat here what was there written. Therefore, the demurrer should have been sustained and the indictment dismissed.
Wherefore, the judgment is reversed for proceedings in conformity with this opinion.