Smith, J.
The indictment (on January 20, 1954) charged “desertion and nonsupport” alleging: “That defendant * * * did wilfully and without good cause neglect and refuse to provide support for his three minor children * * they being in a destitute condition. In violation of section 731.1 of the 1950 Code of Iowa.”
Defendant was arraigned and pleaded guilty on February 18, 191)4, but no sentence was pronounced at that time. Instead the court made the following order: “ * * it appearing to the Court that the defendant is desirous of furnishing support for his three minor children and reimbursing the State Board of Social Welfare for the $356.80 which they have contributed toward the support of said minor children.
“It is therefore ordered that under the provisions of section 731.3 of the 1950 Code of Iowa he be released on Bond on the condition that he pay to the clerk of the District Court the sum of $356.80 in monthly payments of $60 beginning in the month of March, and each and every month thereafter until said amount is fully paid.”
A paragraph then orders the clerk to remit the sum of [934]*934$356.80 (when fully paid in) to the Welfare Board and then concludes :
“It is further ordered that after the $356.80 is fully paid defendant shall continue to support his three minor children according to law and that he be permitted to sign his own bond in the sum of $500.”
That same day (February 18, 1954) defendant filed the undertaking or bond which, after “whereases” reciting the preliminary matters, continues: “Now, Therefore, I * * * hereby undertake to furnish my three minor children with necessary support and pay into the office of the clerk * * for the purpose of reimbursing the State Board of Social Welfare for the $356.80' * * * the sum of $60 per month until said amount is fully paid, and that if I should fail in said undertaking, I shall forfeit and pay to the State of Iowa the sum of $500. [Signed] Donnell Ray Walker.”
On June 26, 1954, the county attorney filed an “application for order” which first recited what had already transpired and then continued:
“That since the procedure above outlined the defendant has failed and refused to make any payments to the clerk of court except a payment of $10 on May 10, 1954.
“That defendant has wholly failed in his undertaking and that under the provisions of section 731.5 of the 1950 Code of Iowa, the defendant may be arrested * * * upon a warrant issued by the court in which a conviction was had.
“Wherefore applicant prays that the court issue a bench warrant * * * and set a date for sentencing * * *.”
A warrant issued the same day ordering that the defendant be arrested and brought before the court July 1, 1954, to be sentenced. On July 20 the county attorney filed another application reciting that it had been impossible to locate defendant prior to July 1, but'that on July 16 he had posted a $500 bond. A new date for sentencing was fixed and on July 24, the day set, defendant appeared and requested a continuance which was denied.
His attorney then moved to dismiss the proceeding claiming the court had lost jurisdiction because the term of court of the original order was past, that the court could not sentence him for [935]*935nonpayment of his debt to the “State of Iowa or Pottawattamie County” (evidently meaning the Welfare Board).
The motion was overruled. Defendant was asked if he had any evidence to offer. His attorney stated defendant had. (“at this time”) a steady job and was “able and willing to pay fifteen dollars a week until this money is paid to the county and state if this case is continued over for a week. He hasn’t any money at this time. If he is sentenced to jail the county will have to support his wife.” (Emphasis supplied. The minutes of evidence attached to the indictment show defendant and his wife were divorced. The record reveals no mention of the dependent children.)
Sentence to the penitentiary was imposed and defendant has appealed.
The applicable statutes are found in chapter 731, Iowa Code, 1954. Section 731.1 defines the crime and prescribes the penalty. The indictment, already set out, indicates its nature. Section 731.3 permits the court, after a defendant is convicted, to release him upon bond “with or without sureties” conditioned that he will furnish his dependent children with “a necessary and proper home, food, care, and clothing.” Section 731.5 provides for rearrest of defendant, forfeiture of his bond and his commitment, upon his failure to comply with his undertaking, “or for good cause shown” the court “may release the defendant upon a new undertaking.”
I. We have set out the proceedings at some length in order to get the picture clearly in mind. The procedural situation is unusual and there are few if any precedents to guide us.
Defendant bases his argument here on the premise that his constitutional right of being confronted by the witnesses against him had been denied — “the right of cross-examination and the right to be acquitted unless, from the evidence or lack of evidence, he was convicted [emphasis supplied] beyond a reasonable doubt.”
Apparently defendant and his attorneys forget he had already been convicted of the crime for which he was sentenced. He had pleaded guilty to the crime of “wilfully cmd urithout good cause” neglecting and refusing “to provide support” for his destitute minor children.
[936]*936No constitutional rights are involved on this appeal.
II. The statute (Code section 731.3) in cases of this kind gives the trial court discretionary power “before sentence” to release the defendant upon his bond conditioned that he “will furnish his * * * children with a necessary and proper home, food, care, and clothing.” State v. Sell, 199 Iowa 388, 202 N.W. 209. The section is not mandatory but directory and discretionary. State v. Morgan, 146 Iowa 298, 125 N.W. 166.
Unfortunately, in the instant case, the court ordered first that defendant give bond to pay the amount that had already been advanced by the Welfare Board and provided “that after the $356.80 is fully paid defendant shall continue to support his three minor children according to law.” The bond as given contained the dual undertaking to furnish the children “necessary” support and to make the $60 payments required by the order in order to liquidate his debt to the Welfare Board.
The defendant argues the obligation of the bond to repay the State Board of Social Welfare “is illegal and void.” The argument is sound. The amount due the Board was a valid debt but its repayment could not be made a condition of suspending sentence under the statute. State v. Manley, 197 Iowa 46, 50 et seq., 196 N.W. 724. The debt to the Social Welfare Board had no status differing from that of any ordinary debt. Its nonpayment could not be the basis for imprisonment.
III. But it does not follow the entire bond was void. The unusual (but benevolent and humane) provisions for permitting a suspension of sentence (for the crime already committed) and for the release of defendant on bond to “go and sin no more” is a matter of grace for the benefit of the neglected children, not of the defendant, who has pleaded guilty of the crime of wilfully deserting and leaving them in a destitute condition.-
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Smith, J.
The indictment (on January 20, 1954) charged “desertion and nonsupport” alleging: “That defendant * * * did wilfully and without good cause neglect and refuse to provide support for his three minor children * * they being in a destitute condition. In violation of section 731.1 of the 1950 Code of Iowa.”
Defendant was arraigned and pleaded guilty on February 18, 191)4, but no sentence was pronounced at that time. Instead the court made the following order: “ * * it appearing to the Court that the defendant is desirous of furnishing support for his three minor children and reimbursing the State Board of Social Welfare for the $356.80 which they have contributed toward the support of said minor children.
“It is therefore ordered that under the provisions of section 731.3 of the 1950 Code of Iowa he be released on Bond on the condition that he pay to the clerk of the District Court the sum of $356.80 in monthly payments of $60 beginning in the month of March, and each and every month thereafter until said amount is fully paid.”
A paragraph then orders the clerk to remit the sum of [934]*934$356.80 (when fully paid in) to the Welfare Board and then concludes :
“It is further ordered that after the $356.80 is fully paid defendant shall continue to support his three minor children according to law and that he be permitted to sign his own bond in the sum of $500.”
That same day (February 18, 1954) defendant filed the undertaking or bond which, after “whereases” reciting the preliminary matters, continues: “Now, Therefore, I * * * hereby undertake to furnish my three minor children with necessary support and pay into the office of the clerk * * for the purpose of reimbursing the State Board of Social Welfare for the $356.80' * * * the sum of $60 per month until said amount is fully paid, and that if I should fail in said undertaking, I shall forfeit and pay to the State of Iowa the sum of $500. [Signed] Donnell Ray Walker.”
On June 26, 1954, the county attorney filed an “application for order” which first recited what had already transpired and then continued:
“That since the procedure above outlined the defendant has failed and refused to make any payments to the clerk of court except a payment of $10 on May 10, 1954.
“That defendant has wholly failed in his undertaking and that under the provisions of section 731.5 of the 1950 Code of Iowa, the defendant may be arrested * * * upon a warrant issued by the court in which a conviction was had.
“Wherefore applicant prays that the court issue a bench warrant * * * and set a date for sentencing * * *.”
A warrant issued the same day ordering that the defendant be arrested and brought before the court July 1, 1954, to be sentenced. On July 20 the county attorney filed another application reciting that it had been impossible to locate defendant prior to July 1, but'that on July 16 he had posted a $500 bond. A new date for sentencing was fixed and on July 24, the day set, defendant appeared and requested a continuance which was denied.
His attorney then moved to dismiss the proceeding claiming the court had lost jurisdiction because the term of court of the original order was past, that the court could not sentence him for [935]*935nonpayment of his debt to the “State of Iowa or Pottawattamie County” (evidently meaning the Welfare Board).
The motion was overruled. Defendant was asked if he had any evidence to offer. His attorney stated defendant had. (“at this time”) a steady job and was “able and willing to pay fifteen dollars a week until this money is paid to the county and state if this case is continued over for a week. He hasn’t any money at this time. If he is sentenced to jail the county will have to support his wife.” (Emphasis supplied. The minutes of evidence attached to the indictment show defendant and his wife were divorced. The record reveals no mention of the dependent children.)
Sentence to the penitentiary was imposed and defendant has appealed.
The applicable statutes are found in chapter 731, Iowa Code, 1954. Section 731.1 defines the crime and prescribes the penalty. The indictment, already set out, indicates its nature. Section 731.3 permits the court, after a defendant is convicted, to release him upon bond “with or without sureties” conditioned that he will furnish his dependent children with “a necessary and proper home, food, care, and clothing.” Section 731.5 provides for rearrest of defendant, forfeiture of his bond and his commitment, upon his failure to comply with his undertaking, “or for good cause shown” the court “may release the defendant upon a new undertaking.”
I. We have set out the proceedings at some length in order to get the picture clearly in mind. The procedural situation is unusual and there are few if any precedents to guide us.
Defendant bases his argument here on the premise that his constitutional right of being confronted by the witnesses against him had been denied — “the right of cross-examination and the right to be acquitted unless, from the evidence or lack of evidence, he was convicted [emphasis supplied] beyond a reasonable doubt.”
Apparently defendant and his attorneys forget he had already been convicted of the crime for which he was sentenced. He had pleaded guilty to the crime of “wilfully cmd urithout good cause” neglecting and refusing “to provide support” for his destitute minor children.
[936]*936No constitutional rights are involved on this appeal.
II. The statute (Code section 731.3) in cases of this kind gives the trial court discretionary power “before sentence” to release the defendant upon his bond conditioned that he “will furnish his * * * children with a necessary and proper home, food, care, and clothing.” State v. Sell, 199 Iowa 388, 202 N.W. 209. The section is not mandatory but directory and discretionary. State v. Morgan, 146 Iowa 298, 125 N.W. 166.
Unfortunately, in the instant case, the court ordered first that defendant give bond to pay the amount that had already been advanced by the Welfare Board and provided “that after the $356.80 is fully paid defendant shall continue to support his three minor children according to law.” The bond as given contained the dual undertaking to furnish the children “necessary” support and to make the $60 payments required by the order in order to liquidate his debt to the Welfare Board.
The defendant argues the obligation of the bond to repay the State Board of Social Welfare “is illegal and void.” The argument is sound. The amount due the Board was a valid debt but its repayment could not be made a condition of suspending sentence under the statute. State v. Manley, 197 Iowa 46, 50 et seq., 196 N.W. 724. The debt to the Social Welfare Board had no status differing from that of any ordinary debt. Its nonpayment could not be the basis for imprisonment.
III. But it does not follow the entire bond was void. The unusual (but benevolent and humane) provisions for permitting a suspension of sentence (for the crime already committed) and for the release of defendant on bond to “go and sin no more” is a matter of grace for the benefit of the neglected children, not of the defendant, who has pleaded guilty of the crime of wilfully deserting and leaving them in a destitute condition.-
The statute is based on the self-evident proposition that usually a man’s ability to support his dependents ends when he is imprisoned. And enforcement of that support is the primary purpose. If by holding over a defendant’s head the threat of imprisonment his ability or will to perform his duty can be sufficiently stimulated, the object of the statute will have been attained. It is not intended to provide imprisonment for debt,
[937]*937IV. Nor does the court lose jurisdiction to impose sentence at a subsequent term of court if the proper obligation of the bond is violated and it becomes apparent the mere threat of punishment is not having its effect. We are cited to no authority holding that. The court retains power to impose punishment for the original crime of which defendant has been convicted. Section 731.5, Iowa Code, 1954. Any construction that would deny the power of the court at a later term to pronounce sentence upon the conviction already entered would largely dimiuish any value the statute has as a social weapon for the benefit of the dependents.
But it is the duty of the court in such case to determine whether the proper condition of the bond has been violated— whether defendant is continuing the neglect and the nonsupport of his dependent children. State v. Sell, supra.
We do not find that any such inquiry was made here. The whole emphasis was upon defendant’s failure to make the monthly payments for defraying his debt to the Welfare Board. Court and counsel alike seemed to consider that the first and principal object of the proceedings.
We are disturbed, not by any violation of defendant’s rights, but by lack of consideration for the welfare of the children. There is not a word in the record to show that any inquiry was made or any information vouchsafed as to whether defendant had done anything or paid anything for their support; or as to whether further extension of time would be in their interest.
V. We see no reason why this may not still be done. We think the sentence imposed should be suspended and the case returned to the district court, inquiry made as to whether defendant can be depended on to support his children in a proper manner, and judgment rendered accordingly. The nature of the inquiry and final determination must be left to the sound discretion of the court.
It is so ordered. — Reversed.
Wennerstrum, C. J., and Oliver, Mulroney, Hays, Thompson, and Larson, JJ., concur.
Garfield and Bliss, JJ., dissent.