State v. Sims

57 So. 2d 177, 220 La. 532, 1952 La. LEXIS 1104

• Court: Supreme Court of Louisiana
• Decided: January 14, 1952
• Docket: No. 40518
• Status: Published

Opinions

McCALEB, Justice.

Appellant was charged, tried and convicted of the offense of “criminal neglect of family” in that he intentionally deserted and failed to support his illegitimate minor child, in destitute circumstances, in violation of LSA-R.S. 14:74, as amended by Act No. 164 of 1950.¹ Following the imposition of a sentence to serve 12 months in the parish jail, he prosecuted this appeal relying, in the main, on a motion to quash the bill of information for annulment of his conviction.

The allegations of the bill of information, as enlarged by certain facts furnished by the State in response to a motion for a bill of particulars, reveal that the minor child was born on January 25th, 1944 to an unwed mother and that appellant was a married man at that time. Accordingly, if appellant is the father, the child is an adulterous bastard (Article 182, Civil Code), and could not be lawfully acknowledged (Article 202, Civil Code). Therefore, it is apparent that the case is controlled by our rulings in State v. Jones, 220 La. 381, 56 So.2d 724, and State v. Randall, 219 La. 578, 53 So.2d 689 and discussion of other grounds for reversal urged by appellant’s counsel would be superfluous.

In State v. Jones, our most recent decision on this subject (handed down on December 10th, 1951), it was held that Act No. 164 of 1950, making it a crime for a psyent to desert or intentionally fail to support his destitute illegitimate as well as legitimate child, was applicable only to those cases wherein the illegitimate child had been acknowledged by the parent in the manner required by the Civil Code or had been dedared as such by judgment rendered in an appropriate civil proceeding. It was resolved that, unless a civil obligation had been previously imposed upon the alleged father of the illegitimate child, criminal responsibility could not ensue and that it was unthinkable that the Legislature intended to repeal, by implication, the provisions of our Civil Code respecting the duties of parents towards their illegitimates, Articles 238 through 245 of the Civil Code, or bring about such an unjustified paradox so as to render one criminally liable for failure to furnish sustenance to a child by reason of a civil filiation when the substantive law, under which the status was established, did not impose the obligation of support.

The District Attorney, who represented the prosecution in State v. Jones,² and the Attorney General evidently believed that decision to be sound as they did not avail themselves of the right to apply for a rehearing and judgment in that matter has become final since the submission of this appeal. Hence, forasmuch as State v. Jones governs this case, which involves an alleged adulterous bastard to whom acknowledgment by appellant would be ineffective for any purpose including the child’s claim for alimony, see Article 242 of the Civil Code, further comment would be unnecessary but for the dissension of a minority of the Court who contend that the Jones opinion is incorrect.

In deference to the views of our colleagues, we have undertaken to reexamine the reasoning upon which the ruling in State v. Jones is based. However, our study has served only to strengthen our confidence in the correctness of the opinion. The attack on State v. Jones, as we understand it, is predicated on the theory that Act No. 164 of 1950, in rendering criminal the failure to support an illegitimate child, is not, impliedly or otherwise, conditioned upon a civil duty of the parent to furnish support but only upon the factual relationship of sire and offspring plus, of course, necessitous circumstances of the latter. It ■is at once obvious that, if this view be accepted, then our other recent decision under Act No. 164 of 1950, State v. Randall, supra, is likewise erroneous as the evidence which we there found to be inadmissible — i. e., that Randall was the true father of the child despite the fact that the mother was married to another man at the time of its conception and birth — should have been received for the purpose of establishing Randall’s duty of support. In that case, it was reasoned, correctly so we think, that we must look to the substantive law for guidance in determining the type of evidence which may be admitted and that, since Article 184 of the Civil Code provides a legal presumption that the husband of the mother was the father of the child conceived during the marriage, the State could not show otherwise inasmuch as the provisions of Act No. 164 of 1950 did not justify a holding that they had effected an implied repeal of the codal articles.

But, be this as it may, we think that Act No. 164 reveals an unmistakable intention that the neglect, to be criminal, must be conditioned on a civil obligation or duty for, after declaring that it is a “criminal neglect of family” for a parent to intentionally fail to support his minor destitute child “whether legitimate or illegitimate”, the statute declares that: “Solely for the purpose of determining the obligation to support, the court shall admit proof of paternity or maternity, or both”.

It is our understanding that the minority interpret this clause as simply meaning that factual proof of paternity or maternity suffices to render the conduct criminal, when the child is in necessitous circumstances. While it is to be conceded that a mere literal reading of the statute might provide some support for this construction, it seems to us that, when consideration is given to the basic family relationship upon which laws of this sort are founded, it -is more reasonable to conclude that the Legislature did not intend to punish an act or course of conduct for which no civil responsibility is imposed. Indeed, the clause authorizing the admission of proof of paternity “Solely for the purpose of determining the obligation to support” necessarily recognizes that there must be an obligation to support in order for the act to become criminal. But the statute singularly fails to set out when and under what conditions the obligation to support arises. Hence, perforce, as stated in the Jones case, reference must be made to the substantive law in order to ascertain the existence of the duty. In cases of legitimate children, proof of the birth during marriage establishes, of course, the obligation to support. Article 227, Civil Code. But this is not true of illegitimates³ as they are not part of the family, Article 238, Civil Code, and the father only incurs responsibility for their upkeep when he has legally acknowledged them or they have been declared to be his children by a judgment duly pronounced in cases where proof of paternal descent may be admitted. Article 242, Civil Code.

The construction given Act No. 164 of 1950 in the Jones case appears to be in harmony with another provision of our Criminal Code, Act No. 43 of 1942 which has been reenacted as Title 14 of the LSA-Revised Statutes of 1950. Article 18 thereof, LSA-R.S. 14:18,⁴ is a general provision dealing with justifiable conduct. It provides:

“The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:

‡ ‡ $ . }}? . ‡

“(3) When for any reason the offender’s conduct is authorized by law; * * * ”.

If Act No. 164 of 1950 should be viewed as rendering appellant’s conduct criminal, although he had no legal duty to furnish support to the child, then the applicability of LSA-R.S. 14:18 to the case seems manifest. Under paragraph (3) of the Article, appellant’s failure to support was fully justifiable as his conduct was “authorized by law” in that no legal obligation is imposed upon the father to furnish support to his alleged adulterous bastard.

Although authorities from other jurisdictions are not usually of much assistance in matters of this kind, due to fundamental differences between our civil law and the common law, we have not overlooked the pronouncements of the courts of other states on this question. While we find that many of the adjudications are distinguishable because of the particular verbiage of the statutes involved, it appears that our view, that legislation making it criminal for a parent to intentionally fail to support his illegitimate minor child in necessitous circumstances is to he confined to those cases in which a civil duty is imposed upon the parent to furnish support, prevails in New Hampshire, New Jersey, Alabama, Missouri and West Virginia.⁵ Contrary rulings have been made in California, Colorado, Delaware, Massachusetts, Nebraska, North Carolina and Pennsylvania.⁶

The conviction and sentence are annulled and appellant is ordered discharged.

FOURNET, C. J., concurs and assigns written reasons. HAMITER, J., dissents. HAWTHORNE, J., dissents and assigns written reasons.

1 . The statute reads, in part:

“Criminal neglect of family is the deertion or intentional non-support:

“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”.

2 . He also represents tbe State in the instant case and readily concedes, in his brief, that our decision in State v. Jones governs the result to be reached in this matter.

3 . Illegitimate children fall into two categories under our law — natural children, which are those who have been acknowledged by their father, and bastards, whose father and mother were incapable of contracting marriage at the time of conception, or whose father is unknown. Article 202, Civil Code.

4 . In the comments on Article 18, the redactors observe: “The importance of this article of the Code cannot be exaggerated. In all or the succeeding articles defining various crimes, usually no mention is made of the possibility that the offender’s conduct may under some circumstances be ‘justified’. Reference must be made to this article to discover the bases for ‘justified’ conduct”.

5 . State v. Byron, 79 N.H. 39, 104 A. 401; Porter v. Wainright, 104 N.J.L. 51, 139 A. 394; Coan v. State, 224 Ala. 584, 141 So. 263; Morgan v. State, 28 Ala.App. 241, 182 So. 466, certiorari denied 236 Ala. 381, 182 So. 468; State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85 and Holmes v. Clegg, 131 W.Va. 449, 48 S.E.2d 438.

6 . People v. Stanley, 33 Cal.App. 624, 166 P. 596; People v. Hamil, 73 Cal.App. 649, 238 P. 1075; Walmsley v. People, 64 Colo. 521, 173 P. 425; State v. Richardson, 1 W.W.Harr.,Del., 14, 110 A. 660; Commonwealth v. Gross, 324 Mass. 123, 85 N.E.2d 249; Craig v. Shea, 102 Neb. 575, 168 N.W. 135; State v. Spillman, 210 N.C. 271, 186 S.E. 322, 323 and Commonwealth v. Wibner, 29. Pa. Dist. 67, affirmed 73 Pa.Super. 349.