Brock v. Commonwealth
| Decision Date | 16 January 1925 |
| Parties | Brock v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Leslie Circuit Court.
J. B. MINIARD for appellant.
FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.
The grand jury of Leslie county on June 7, 1924, returned an indictment against appellant, Henry Brock, charging him with the offense denounced in section 331i-1 of the 1922 edition of Carroll's Kentucky Statutes, commonly known as "Child Desertion." Upon his trial, he was convicted and sentenced to serve a term of one year in the penitentiary. The court declined to set aside the verdict upon a motion made for that purpose and pronounced judgment thereon, to reverse which this appeal is prosecuted.
Under the statute the offense consists in leaving, deserting or abandoning one's child under the age of 16 years while the child or children are in destitute or indigent circumstances without making proper provision for board, clothing, education, etc., suitable to the position and station in life of the parent of the child or children. Necessarily, it was not intended by the legislature to include a case where the parent proceeded against continued to reside in the home provided for himself and family, including his children, and who made an honest and bona fide effort to provide himself with sufficient means for taking care of his family, including his children, in the manner pointed out in the statute, notwithstanding he may have partially failed because of poverty, inability to procure work, inherent incapacity or other conditions and circumstances not under his control and to which he did not contribute.
There is practically no difference in the testimony introduced by the Commonwealth on the trial and that furnished by defendant and his witnesses. In substance, it was, that defendant's family consisted of himself, his wife and seven infant children under the age of 16 years. He was very poor financially and owned no home. In the early spring of 1924 he resided in Hazard, Kentucky, where he sustained the misfortune of the loss by fire of most if not all of his meager personal belongings in the way of household goods and furniture. Afterwards he moved to Leslie county and rented a small cottage with a few acres of ground around it and planted a crop of corn, beans and other vegetables on something more than an acre of the rented land. He sought and obtained work at various places in the surrounding territory, and on occasions obtained jobs as much as three miles or more from his home. He would take in payment for his services, corn, bacon and other articles of food for his family and would carry them to his home where they would be consumed. At other times he would be paid money and with it bought such necessaries as the family absolutely needed in the way of coffee, lard, flour and other provisions. While working away from home he would remain at the place where he was employed for days at a time, and would not return home for exceeding two nights in the week; but no witness proves that he did not use the proceeds of his labor in the manner indicated. In fact it was proven by the Commonwealth's witnesses, supplemented by those of the defendant, that he not only used the proceeds of his labor, as we have stated, but that he spent $40.00 in money which he had managed to accumulate and save before the fire in providing for his wife and children.
It is true that the...
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