State v. Hubbard

81 So. 2d 844, 228 La. 155, 1955 La. LEXIS 1353

Opinions

FOURNET, Chief Justice.

It appears that the New Orleans Department of Public Welfare'having caused to be filed a bill of information charging the defendant here, "John Hubbard, (C)” with criminal neglect of family in that he did “unlawfully and without just cause desert and wilfully neglect to provide for the support of his child Thomas, * * * [who] was and -now- is in destitute and necessitous circumstances * * the defendant secured the following information through his motion for a bill of particulars: that the child’s full name is Thomas Freeman, that the mother of the child, Fannie Mae Freeman, was never married to the defendant, and that the child was not acknowledged by registry at birth or baptism, nor by a declaration executed before a notary public in the presence of two witnesses, and .'that there has never been' a judgment of court declaring defendant to be the father of the child nor civil liability imposed upon the defendant to support him; the defendant then filed a motion to quash the information, based oh the ground’ that (1) there exists no civil obligation upon the defendant to support the subject child, (2) the Juvenile Court for the Parish of Orleans is without jurisdiction to establish the paternity of the subject child. The Assistant District Attorney, contending that this motion to quash was premature, sought to introduce evidence to establish proof of paternity of the child named in the bill of information, but the learned judge of the Juvenile Court for the Parish of Orleans, being of the opinion that the Court was without jurisdiction to establish the\ paternity of the subject child, maintained the motion to quash. This appeal followed our refusal to grant writs of mandamus, prohibition and certiorari.

The people, through their legally constituted representatives, in adopting the Constitution of 1921 created the Juvenile Court for the Parish of Orleans,¹ “which shall have jurisdiction, except for capital . crimes, of the trial of all children under ■seventeen years of age who may be charged in said court as neglected or delinquent children, and of all persons charged with contributing to the neglect or delinquency of children under seventeen years' of age, .-the violation of any law, now in existence jor. hereafter enacted for the protection of the .physical, -moral and mental well-being of. children'not punishable by death or hard labor. -Said court shall also have jurisdic.'.tión of all Cases of .desertion or non-sup-.por-t of -children by. either .parent, or of wives .by their husbands. * * *” This ■■provision has been amended several times, -notably in the year 1938,² to give jurisdiction to the Juvenile Court for the Parish Orleans “also of the adoption of chili:dren under .'seventeen years of age”, but cfor .'purposes ■ of decision in this case the ;*áiriendments are not pertinent..

Article 74 of the Louisiana Criminal Code³ originally provided simply that “Criminal neglect of family is the desertion or intentional non-support: (1) By a husband of his wife who is in destitute or necessitous circumstances, or (2) By either parent of his minor child who is in destitute or necessitous circumstances.” The Legislature of 1950, by its adoption of Act 164, extended the offense of criminal neglect of family to include desertion and intentional nonsupport of illegitimate children.⁴ Subsequent to the decisions of this Court in the cases of State v. Randall, 219 La. 578, 53 So.2d 689; State v. Jones, 220 La. 381, 56 So.2d 724, and State v. Sims, 220 La. 532, 57 So.2d 177, holding, in effect, that in the absence of a civil obligation to support the subject child there could not be criminal neglect of family, the Legislature . further amended LSA-R.S. 14:74 by its Act 368 of 1952, in an effort to create in the statute itself the duty to support such children.⁵ After the refusal of this Court to review the judgment of the Juvenile Court for the Parish of Orleans dismissing the proceedings in the case of State v. Holmes, and our decision in the case of State v. Mack, 224 La. 886, 71 So.2d 315, holding, in effect, that the amendment of 1952 had not changed the rule of the prior decisions, the Legislature in 1954 again amended the statute by declaring that the provisions of Article 242 of the LSA-Civil Code do not apply to any proceeding brought under R.S. 14:74.⁶

The learned judge of the Juvenile Court, in a well-reasoned Per Curiam maintaining the motion to quash, took cognizance of the limited jurisdiction granted his Court under the Constitution, and held that the Juvenile Court for the Parish of Orleans was without authority to entertain a case to establish the paternity of the subject child and fix responsibility for his support, and concluded that such responsibility must exist prior to any attempt to enforce the responsibility for such support, observing: “In the instant case, paternity of the child, Thomas, was never established, so that at the time this charge of nonsupport was filed against the defendant, John Hubbard, there was no established relationship of parent and child. Until such relationship is established, there can be no obligation to support, and without such obligation, this Court is without authority to enforce the responsibility which this criminal stat ute seeks to place on unlawful fathers. * sfc

With the exception of the amendment of 1938 giving jurisdiction to the Juvenile Court for the Parish of Orleans of adoption proceedings, the article of the Constitution as originally enacted, and the several amendments thereto, clearly show that the Court has no jurisdiction over civil matters; its jurisdiction is limited exclusively to the trial of cases, except capital crimes, involving children under seventeen years of age charged as neglected or delinquent, and persons contributing to their delinquency, as well as of cases charging parents with desertion or nonsupport of their children or husbands of their wives. Of necessity, the Juvenile Court for the Parish of Orleans is without power or authority to entertain any action to establish the paternity of an illegitimate child; that function has been well recognized in all of the jurisprudence on the subject to be a civil function, exclusive jurisdiction thereof being vested in the Civil District Court for the Parish of Orleans. Art. 7, § 81, La.Const. of 1921. This was accentuated in the comparatively recent case of State v. Sims, supra, wherein we said [220 La. 532, 57 So.2d 178]: “unless a civil obligation had been previously imposed upon the alleged father of the illegitimate child, criminal responsibility could not ensue." We approved this ruling when we denied the application for writs to the ruling of the judge of the Juvenile Court for the Parish of Orleans in the case of State v. Holmes (No. 41076 on the Docket of this Court) refusing to convict the defendant Holmes on the charge of criminal neglect of two minor children. In his written reasons for his ruling the judge stated that this Court in the Sims case had “clearly outlined the only procedure possible under the law for establishing the paternity of illegitimate children,” the Court observing further “The Louisiana Supreme Court did not question the right of illegitimate children to secure support under this statute [R.S. 14:74] but denied the right of said children to prove their paternity * * * unless proof was first made in accordance with the rules established by the Civil Code of 1870.” And even after the Legislature of 1952 sought to overrule these decisions by adopting Act 368, and to create in the statute itself a duty to support the child, in the case of State v. Mack, 224 La. 886, 71 So.2d 315, 316, we adhered to our previous conclusions, holding “that in order to obtain a conviction there must be established the existence of a civil obligation to support, * * *.” The fact that the Legislature in the year 1954 adopted its Act No. 298, declaring that “The provisions of Art. 242 of the Louisiana Revised Civil Code of 1870 shall not apply to any proceeding brought under the provisions of R.S. 14:74” has not served to change the situation.

This conclusion is not only sound, and consonant with the canons of construe tion, but is in keeping with the jurisprudence. It would be illogical ■ and Unsound to hold otherwise and, we think, might well lead to injustice, oppression, and absurd consequences. We think it would be most illogical to convict the defendant of neglect of family, which of necessity required him to be decreed to be the father of such illegitimate child who, under our substantive law, belongs to no family, and simultaneously hold that the defendant, deserted a child who had never been under his custody, and intentionally failed to support a child when theretofore there had been no such liability established.

To further illustrate the absurdity a contrary view could bring about, we might consider the defendant Shep Randall in our comparatively recent decision in the case of State v. Randall, 219 La. 578, 53 So.2d 689, 691, where we reversed the judgment of the Juvenile Court for the Parish of East Baton Rouge convicting Randall for criminal neglect of family in that he intentionally neglected and failed to support the two year old child born to a woman then married to another man from whom she was not divorced, the basis of our ruling being that according to the Revised Civil Code the husband of the mother, in. the.absence of timely disavowal proceedings by him or his heirs, is conclusively presumed to be the father of the child born during the marriage. To accept literally the enactment of the Legislature might bring about the very situation cautioned against in that opinion when we said “An unqualified destruction of the established conclusive presumption * * * might lead to injustice, oppression and absurd consequences. The wife in non-support cases (if not in all cases involving the paternity of the child born during her marriage) would carry the burden of proving that her husband is the actual father of her child.”

For the reasons assigned, the judgment of the Juvenile Court for the Parish of Orleans is affirmed.

Footnotes

1

. Louisiana Constitution of 1921, Const. LSA, Article 7, Section 96.

2

. Act 890 of 1938, adopted as a constitutional amendment on November 8th of that year.

3

. The Louisiana Criminal Code, being Act 43 of 1942, was incorporated in the Revised Statutes of 1950 under Title 14; Article 74.of the Criminal Code, merely a codification of previously existing law, is now LSA-R.S. 14:74.

4

. There was no amendment to subdivision (1); subdivision (2) was amended to read:

“(2) By either parent-of his minor child, whether legitimate or illegitimate, who is 'in - destitute or necessitous circumstances. Solely for the purpose of determining the obligation to support, the court shall admit proof of paternity or maternity, or both.

“Whenever a husband shall have left his wife in destitute or necessitous circumstances and has not provided her with means of support within sixty days thereafter, his failure to so provide shall be presumptive evidence .that at the time of leaving he intended desertion and nonsupport. When either parent shall have left his minor child, whether legitimate or illegitimate; in destitute or necessitous circumstances and has .not provided support within sixty days thereafter, his failure to so provide shall be presumptive evidence that at the time of leaving he intended, desertion and non-support.”

5

. The amendment was again to subdivision (2), and provided that it should read:

“(2) By either parent of his minor child, whether legitimate or illegitimate, who is in destitute or necessitous circumstances, there being a duty established by this article for either parent to support his child. The parent shall have this duty without regard to his reasons and irrespective of the causes of his living separate from the other parent. The duty established by this article shall apply retrospectively to all children, legitimate or illegitimate, born prior to the effective date of this article.

“In the case of an illegitimate child, evidence may be introduced in the proceedings hereunder to prove paternity or maternity. This proof shall be made in accordance with the rules established by the Revised Civil Code of 1870, as amended, as for proof of paternity or maternity for civil purposes. Such proof, however, shall be used solely as the basis for the duty to support an illegitimate child established by this article, and shall not be construed as establishing any civil obligation. * * * ”

6

. The 1954 amendment added a new section, to be designated as LSA-R.S. 14:74.1, and to read as follows: “Sec. 74.1 Right of action. The provisions of Art. 242 of the Louisiana Revised Civil Code of 1870 shall not apply to any proceeding brought under the provisions of R.S. 14:74.” Act No. 298 of 1954.

Article 242 of the LSA-Civil Code of Louisiana provides: “But in order that they [illegitimate children] may have a right to sue for this alimony, they must:

“1. Have been legally acknowledged by both their father and mother, or by either of them from whom they claim alimony; or they must have been declared to be their children by a judgment duly pronounced, in cases in which they may be admitted to prove their paternal or maternal descent;

“2. They must prove in a satisfactory manner that they stand absolutely in need of such alimony for their support.”