State v. Thornton
| Decision Date | 07 February 1911 |
| Citation | 134 S.W. 519,232 Mo. 298 |
| Parties | THE STATE v. TURNER S. THORNTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. N. D. Thurmond, Judge.
Reversed.
McBaine & Clark and W. H. Rothwell for appellant.
(1) No offense against the laws of Missouri is charged by the information, and the proof showed that the appellant was guilty of no crime under the laws of this State. R. S. 1909 secs. 4492 and 4495; R. S. 1899, secs. 1857 and 1861; Laws 1909, p. 450; State v. Koonse, 123 Mo.App. 655; Dalton v. State, 44 S. E. (Ga.) 977; Williams v State, 55 S. E. (Ga.) 480; Mays v. State, 51 S E. (Ga.) 503; Ritchie v. Commonwealth, 64 S.W. 979; People v. Reubens, 92 N.Y.S. 121; People v. Joyce, 98 N.Y.S. 863. (2) The proof on the part of the State showed that whatever offense was committed by the appellant, was committed prior to the time the Act of June 4, 1909, became a law, and that to convict the defendant under the Act of 1909, Sec. 4492, R. S. 1909, would be to construe the Act of 1909 as ex post facto in its operation and effect. R. S. 1899, sec. 1861; Bull v. State, 80 Ga. 705; Calder v. Bull, 3 Dall. 386; State v. Kyle, 166 Mo. 287; Kring v. Missouri, 107 U.S. 221; 8 Cyc. 1027; Laws 1909, p. 647, sec. 15, and p. 644, sec. 7; Const. of Mo., art. 4, sec. 36; State ex rel. v. McIntosh, 205 Mo. 616; Whittaker v. Ins. Co., 133 Mo.App. 667; State ex rel. v. Edwards, 136 Mo. 360; Westport v. Smith, 68 Mo.App. 63; 36 Cyc. 1205-1206; State v. Dierkes, 211 Mo. 568. (3) Appellant's refused instructions should have been given by the trial court. R. S. 1909, sec. 4492; also, cases cited under point 1. (4) Instruction A given at the request of the State is erroneous in that it fails to define "lawful excuse." State v. Greenup, 30 Mo.App. 303; State v. Strong, 153 Mo. 540; Carr v. State, 104 Ala. 4; State v. Brinkman, 40 Mo.App. 289; Ayers v. Railroad, 124 Mo.App. 465.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) The information charges the offense in the language of the statute. R. S. 1909, sec. 4492. When the act defines the offense, it is sufficient to charge the offense in the language of the act. State v. Davis, 70 Mo. 464; State v. Newberry, 43 Mo. 432; State v. Adcock, 65 Mo. 590; State v. Watson, 65 Mo. 429; State v. Brinkman, 40 Mo.App. 284; State v. Larger, 45 Mo. 510. (2) It is no defense that the children were not in the custody of the appellant. If he was entitled to their custody, there was a way for him to obtain them. The doors of the court were open to him. The father must maintain the child, even when the child is in the custody of the mother. Viertel v. Viertel, 212 Mo. 562; Keller v. St. Louis, 152 Mo. 596; Myers v. Myers, 91 Mo.App. 151. (3) The evidence was amply sufficient to support the finding of the jury. The jury were the triers of the facts and the weight of evidence and their finding should not be disturbed. State v. Tetrick, 199 Mo. 100; State v. Mathews, 202 Mo. 148. (4) The instructions fully and fairly presented the law of the case, under the evidence. They were sufficient upon reasonable doubt, and defined the offense, and no legal objection can be made against them. Instruction 6 was more favorable to appellant than he was entitled to. It told the jury that if appellant was prevented from providing support for the children by reason of interference on the part of the mother or father of his wife, they must acquit appellant, and also that appellant was under no legal obligations to furnish money to his wife for the purpose of providing food, clothing and shelter for his children. The law is that a father must support his children, and if he has not their custody, it is his duty to obtain same, if he so desires. (5) Instruction 4 was properly refused. It told the jury that appellant did not have to provide for his children if his wife refused to give them to him. This is not the law. Viertel v. Viertel, supra. Instruction 5 was refused for the reason that it would have told the jury that if the wife retained the children in her own custody and they received sufficient food, clothing and shelter, they should acquit the defendant. This instruction would simply mean that the mother, who had the custody of the infant children, must fail to furnish food, clothing or shelter for the infants before the law would convict appellant; hence, the instruction was properly refused. Appellant did not request the court to instruct upon all the law of the case at the time. (6) Appellant complains, as one ground for his motion for new trial, that he is deprived of his constitutional rights as provided in sections 15 and 30 of article 2 of the Constitution of Missouri, because Sec. 1857, R. S. 1899, was amended by the Act of 1909, p. 450. This prosecution was filed in April, 1910, and the instructions to the court limited the proof between the dates of November 2, 1909, and February 28, 1910. The information was based upon Sec. 4492, R. S. 1899, as amended by the Laws of 1909. This amendment went into effect August 16, 1909, and one of the infant children was born in October, 1909. The evidence in this prosecution was confined to the time after the younger child was born. There is no evidence in the record as to what occurred, or what appellant did, prior to the birth of the younger child, with the exception that he and his wife separated in January or February, 1909. Bull v. State, 80 Ga. 705. Appellant cannot secure to himself the constitutional rights provided by sections 15 and 30 of article 2 of the Constitution, because the evidence reveals that the whole case was commenced, and evidence therein adduced, after the Act of 1909 had become effective.
Defendant was convicted at the April term, 1910, of the circuit court of Boone county, upon an information which reads as follows:
"L. T. Searcy, prosecuting attorney within and for the county of Boone, in the State of Missouri, informs the court that Turner S. Thornton, on the 2d day of November, 1909, at the said county of Boone, and State of Missouri, being then and there the father of two infant children, born in lawful wedlock, under the age of sixteen years, to-wit: Margarite Thornton, aged two years, and Rudolph Thornton, age five months, feloniously, unlawfully, willfully and without lawful excuse, did refuse and neglect to provide for said infant children necessary food, clothing and lodging, and the said Turner S. Thornton, in the county and State aforesaid, from the second day of November, 1909, to the 28th day of February, 1910, and thence hitherto, did feloniously, unlawfully, willfully and without lawful excuse refuse and neglect to provide necessary food, clothing and lodging for his said infant children aforesaid, against the peace and dignity of the State."
This information is based upon section 4492, Revised Statutes 1909, which provides: "If any mother of any infant child, under the age of sixteen years, or any father of any such infant child, born in or legitimatized by lawful wedlock, or any person who has adopted any such infant child, or any master or mistress of an apprentice, under such age, or other person having the legal care and control of any such infant shall, without lawful excuse, refuse or neglect to provide for such infant or apprentice necessary food, clothing or lodging, or shall unlawfully and purposely assault such infant or apprentice, whereby his life shall be endangered or his health shall have been or shall be likely to be permanently injured, the person so offending shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or by imprisonment in the county jail not exceeding one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment."
The following facts are practically conceded:
The defendant, Turner S. Thornton, when about nineteen years old, married Metta Baldwin on October 21, 1907. The couple lived together until February, 1909, when they separated, the wife returning to her father's house, where she continued to live up to the date of the trial; the husband returning to the home of his mother and remaining there. The wife took with her to her father's home the one child which had been born of the union, a girl, Margarite. A second child was born to her in her father's house in September, 1909. The children were supplied by the wife's father, up to the date of the trial, with all necessary food, clothing and lodging, and as testified by the mother, "were well taken care of." From and after the separation in February, 1909, the defendant contributed nothing to the support of the children. Defendant was an average laborer, earning about one dollar a day. He on one occasion sent for the baby, when it was three or four months old, but was refused. He made some attempt to meet his wife and her father to talk over matters with a view to an arrangement about the children, but the effort failed.
There was some evidence that defendant and his mother wished to take the girl to live with him and his mother. The evidence for the State shows that the wife refused to give up the children. It is evident from the testimony that the defendant refused to support the children so long as they were retained in the custody of the mother. It is equally clear that the mother and her father did not propose to recognize any right in the father except the right to contribute to the support of the children, the mother to retain the exclusive custody and control.
Whether this conviction can be sustained depends upon the construction of section 4492, set out above. If, as contended by the...
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