Commonwealth v. Kirk

• Decision Date: 29 January 1926
• Parties: Commonwealth v. Kirk.
• Court: United States State Supreme Court — District of Kentucky

212 Ky. 646

Commonwealth v. Kirk.

Court of Appeals of Kentucky.

Decided January 29, 1926.

1. Statutes — Applicability and Scope Determined by Legislature's Intent and Purpose as Gathered from Language. — Applicability and scope of statute must be determined by ascertaining legislature's intent and purpose in enacting it as gathered from its language.

2. Statutes — Intent and Purpose in Enacting Statute May be Arrived at by Considering Object and Other Statutes in Existence at Time. — In arriving at the legislative intent and purpose in enacting a statute, the object to be accomplished and other statutes in existence at the time and bearing on the principal question for determination may be considered.

3. Adoption — Status of Adopted Infant and Parent Governed by Statute of Forum Authorizing Adoption. — Status of adopted infant and parent toward each other is governed by statute of forum creating right of adoption.

4. Adoption — Statute Making Abandonment by "Parent" of Minor Child a Felony Held Applicable to Abandonment of Adopted Child. — Ky. Stats., section 331i-1, making abandonment by a "parent" of a minor child in destitute circumstances a felony, applies to abandonment of a child adopted under section 2072; legislature being presumed to have known existing law, and intended word "parent" to include both adopting and natural parents, whose obligations to child are same.

5. Adoption — Adopting Parent Liable for Necessaries, and Subject to Civil Remedies Against Natural Parent to Enforce Proper Maintenance. — An adopting parent, under Ky. Stats., section 2072, is liable for necessaries furnished to the adopted child, and subject to all civil remedies against a natural parent to enforce proper maintenance.

6. Adoption — Indictment for Abandoning Adopted Minor Child Held Sufficient, Though Not Alleging Statute Under which Adopted. — Indictment under Ky. Stats., section 331i-1, for abandoning adopted minor child in destitute circumstances, held sufficient, though not alleging statute under which child was adopted, where it alleged that defendant adopted the "infant," which can only be done under section 2072, not that child was adopted only as an heir under section 2071.

7. Adoption — Indictment for Abandoning Minor Adopted Child Sufficient, though Not Setting out Judgment of Adoption. — Indictment for abandoning adopted minor child in destitute circumstances, held sufficient, though not setting forth the judgment by which the child was adopted, where the fact of adoption was alleged.

Appeal from Boyd Circuit Court.

FRANK E. DAUGHERTY, Attorney General, and WATT. M. PRICHARD for appellant.

JNO. F. COLDIRON for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

Section 331i-1 of our present statutes reads: "The parent of any child or children residing in this Commonwealth who shall leave, desert or abandon said child or children under the age of sixteen years, leaving said child or children in destitute or indigent circumstances and without making proper provision for the board, clothing, education and proper care of said child or children in a manner suitable to the condition and station in life of said parent and said child and children shall be guilty of a felony and upon conviction thereof shall be punished by confinement in the penitentiary for not less than one year nor more than five years in the discretion of the court or jury trying the case."

The grand jury of Boyd county returned an indictment against appellee and defendant below, Floyd Kirk, charging him with violating that statute. The indictment was in the language of the statute and its sufficiency, if the abandoned child was the natural one of defendant, is not questioned, but it alleged the name of the child as "Lillian Minor, age 8 years, said Lillian Minor having been adopted by said Floyd Kirk by proper orders of the Greenup circuit court of Greenup county, Kentucky." Defendant demurred to the indictment and the court sustained it, expressly upon the ground that a proper construction of the statute did not apply to or include the abandonment and desertion of adopted children, and the Commonwealth disputing the accuracy of that interpretation prosecutes this appeal from the judgment.

The question presented is, of course, to be determined from the ascertainment of the intent and purpose of the legislature in enacting the statute as gathered from its language, and in arriving at that intent and purpose the object to be accomplished may be considered, and other statutes in existence at the time of its enactment and having a bearing upon the principal question for determination, may also be considered. Such rules for the interpretation of statutes are fundamental and are universally applied and adopted by courts, and for that reason we deem it unnecessary to cite supporting cases.

Evidently the statute was enacted for the benefit and protection of an infant who was in charge and custody of a person designated in the statute as "parent" and whose legal duty under the law was to perform the obligations for a refusal to do which the punishment was provided, and which punishment itself was a means by which the performance of those obligations might be enforced. At the time of the enactment of the statute under which defendant was indicted, sections 2071 and 2072 of our statutes, the one prescribing for the adoption of an heir and the other for the adoption of a child, were each in existence. The law with reference to the adoption of children by one who is not their natural father was unknown to the English common law, and has its source in the Roman law, but most if not all the states have provided therefor by statute, and the status of the adopted infant toward the adopting parent, as well as the latter toward the child, is necessarily governed by the statute of the forum creating the right of adoption. Section 2071, supra, as we have already stated, provides only for the adoption of a person for the purpose of "making him capable of inheriting as heir-at-law of such petitioner," the adopter; and the adopted person under that section need not be an infant but may be of any age, and the adopter thereunder obtains no right to the control of the adopted heir, nor is there any obligation to support assumed by the adopter under that section, even where the adopted one is an infant. But section 2072 says: "Said court shall have authority, by consent of the parents, or either of them, if one be dead, to give the petitioner the parental control of such adopted person, if an infant; and said petitioner shall be under the same responsibilities as if the person so adopted were his own child." (Our italics.)

Mr. Tiffany in the recent third edition of his excellent work on Domestic Relations, on page 314, in stating the legal status of the parties to an adopting proceeding, says: "Where the artificial relation of parent and child is created by adoption under the statutes, the relation will, by the express provisions...