Branham v. State

• Decision Date: 16 January 1928
• Docket Number: Criminal 672
• Citation: 263 P. 1,33 Ariz. 170
• Parties: J. W. BRANHAM, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

263 P. 1

33 Ariz. 170

J. W. BRANHAM, Appellant, v. STATE, Respondent

Criminal No. 672

Supreme Court of Arizona

January 16, 1928

APPEAL from a judgment of the Superior Court of the County of Yavapai. A. S. Gibbons, Judge. Reversed and remanded, with directions.

Mr John A. McGuire, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Frank J. Duffy Assistant Attorney General, for the State.

OPINION

ROSS, C. J.

On May 17th, 1927, defendant was convicted of violating section 249 of the Penal Code of 1913, reading as follows:

"A parent who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter or medical attendance for his or her minor child is guilty of a felony."

The information was in effect and substance couched in the language of the statute, the dereliction charged being the wilful omission, without legal excuse, on or about January 15th, 1927, to furnish necessary food, clothing, shelter, and medical attendance for his minor children Marietta, Albert and Nellie Louise Branham.

The defendant has appealed from the judgment of conviction and urges that many errors were committed. One of defendant's contentions is that section 249 is unconstitutional and void for uncertainty. The infirmity of the statute, he says, consists in its leaving it to the judge and jury to determine what is or what is not lawful excuse. In other words, he thinks the statute should enumerate and define the permissible defenses to this charge and not leave it as a matter of construction by the courts.

The point made is certainly novel and not without interest. The feature of the statute questioned is identical with the New York, California, and Oklahoma statutes, and, although numerous prosecutions have been had in these jurisdictions under such statutes, the question now raised has either been overlooked or thought untenable. People v. Pierson, 176 N.Y. 201, 98 Am. St. Rep. 666, 63 L.R.A. 187, 68 N.E. 243; Washington v. State, 22 Okl.Cr. 69, 209 P. 967; § 270, Kerr's Penal Code of California 1920, and annotations.

Because it may be difficult at times to determine what constitutes a lawful excuse for a parent who fails to furnish the enumerated necessaries to his children is not sufficient reason to declare the statute void for uncertainty. In Lewis' Sutherland, Statutory Crimes, § 86, the rule is stated thus:

"A statute cannot be held void for uncertainty, if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning or the fact that it is susceptible of different interpretations will not render it nugatory. Doubts as to its proper construction will not justify us in disregarding it. It is the bounden duty of courts to endeavor by every rule of construction to ascertain the meaning of, and to give full force and effect to, every enactment of the general assembly not obnoxious to constitutional prohibitions. But if, after exhausting every rule of construction, no sensible meaning can be given to the statute, or if it is so incomplete that it cannot be carried into effect, it must be pronounced inoperative and void."

Defendant contends the information charges three crimes against him, to wit, one for omitting to furnish the enumerated necessaries to Marietta, one for omitting to furnish same to Albert, and one for omitting to furnish same to Nellie Louise, and is therefore bad. He insists his demurrer should have been sustained on this ground. This point, too, is novel. We do not find where it has been raised before, although the form of information here used is quite common where there are more children than one. We think while the parents' duty is personal to each of his children, the duty owed is also to all of them as constituting the family unit. Usually, if not always, the same omission of duty affects all the children alike. They are injured by the same act or omission at the same time and manner, and when that is so the omission should be treated as one offense. The rule contended for by defendant would, indeed, in many cases be an extremely harsh one, as under it a derelict parent could be punished as many times as he has children.

The other objections to the information are without merit. It is substantially in the language of the statute, and, the offense being statutory, this is, as a general rule, sufficient. Atkin v. Territory, 13 Ariz. 26, 108 P. 225; Cluff v. State, 16 Ariz. 179, 142 P. 644; Thompson v. State, 25 Ariz. 314, 216 P. 1074; State v. Moran, 99 Conn. 115, 121 A. 277, 36 A.L.R. 862, and note at page 866.

At the close of the state's case and the close of the whole case the defendant moved for a directed verdict upon the ground of failure of proof, and the ruling upon the motion brings into review the question as to whether under the evidence and the law the conviction should stand.

The submitted evidence that was not controverted is about as follows: The defendant and the prosecuting witness, Elma Branham, were husband and wife, having become such a number of years -- just how many the record does not show -- before this proceeding. There were born to them five children. In July, 1926, upon the complaint of the wife charging defendant with failure to support, she was granted a divorce, the custody of the children, and $50 a month alimony, the defendant making no resistance. For some time prior thereto, and at the time of the divorce, four of the children, to wit, Willie, Marietta, Albert and James Wesley, were living with and being cared for by defendant's mother, Mrs. C. Williams, in Prescott. Defendant's home was also with his mother. Nellie Louise, who was but seven months old at the time of the divorce, was kept by her mother. The four older children remained with the paternal grandmother, Willie until in October when he died, and Marietta and Albert until in November, 1926, and James Wesley continuously. Marietta, aged six, and Albert, aged four, were taken from the grandmother by their mother in November, and given over to a maternal uncle and his wife, living on the Verde in Yavapai county, where they were at the time of the trial, and, so far as the evidence shows were being well cared for. Nellie Louise, who was fourteen months old at the time of the trial, was kept and supported during all the time by her mother. Marietta at the time she was taken from her grandmother was attending the public schools of Prescott.

The evidence as to the troubles between the parents, their poverty, and their struggles to care for and support their children, is not as full or complete or explicit as it might be, leaving much to conjecture or surmise. It appears that defendant is totally blind in one eye, due to the explosion of a dynamite cap, and is short three fingers on one of his hands. Otherwise he is able-bodied and capable of doing some kinds of common labor, but nothing else. During the months of June, July and August, 1926, he was, with a brother, engaged in cutting and marketing firewood in Prescott, and realized about $90 a month, which was used to support the home provided by his mother and where his children were living. He quit such work because it ceased to be remunerative, went to Phoenix in the latter part of August, worked on a ranch caring for and feeding stock for about three weeks, receiving therefor $3 a day and board, and out of such earnings remitted to his mother about $40 or $50. On account of Willie's illness he returned to Prescott, and from that time on until his arrest he was unable to get steady employment, although he tried time and again. He sought employment with the United Verde Copper Company, but was rejected on account of physical defects. He engaged in cutting wood for sale at Clarkdale, but could not find a market for it. He realized on this job only $20. He looked to other places for work, and finally was employed to go to work on February 8 or 9, 1927, but was prevented from accepting such employment because of his arrest in this case.

During this time the mother, Elma Branham, was engaged in running the Reif and Gem Hotels in Prescott, and she had also been employed as a chambermaid. She contributed from January to September, 1926, $111.32 to defendant's mother for keeping the children, and, as she says, her one-half from September to November, when she removed Albert and Marietta to her brother's home on the Verde, after which time she and the brother supported them. The defendant did not pay the $50 per month alimony except in the manner stated -- some months paying more than $50 and some less for the care of his minor children.

The two children who were turned over to the mother's brother (the maternal uncle) in November were taken from the paternal grandmother against her protest and against the protest of the defendant. There was evidence that the charges of the physician for medical attendance upon Willie during his last illness had not been paid by defendant or anyone else, but there is no contention that the children did not have proper medical care. It is also easily deducible from the evidence that the home provided for Marietta and Albert by the grandmother was not ideal, she...