Commonwealth v. Kirk

• Decision Date: 29 January 1926
• Citation: 279 S.W. 1091,212 Ky. 646
• Parties: COMMONWEALTH v. KIRK.
• Court: Kentucky Court of Appeals

279 S.W. 1091

212 Ky. 646

COMMONWEALTH v. KIRK.

Court of Appeals of Kentucky.

January 29, 1926

Appeal from Circuit Court, Boyd County.

Floyd Kirk was indicted for abandoning and deserting a minor adopted child in destitute circumstances, and, from a judgment sustaining a demurrer to the indictment, the Commonwealth appeals. Reversed with directions.

Frank E. Daugherty, Atty. Gen., and Watt. M. Prichard, of Ashland for the Commonwealth.

Jno. F Coldiron, of Catlettsburg, for appellee.

THOMAS J.

Section 331i1 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, Ky." 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 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 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 of most of the statutes, and even independently of such express provisions, give rise to substantially the same rights, duties, and liabilities as arise out of the natural relation. The law cannot, and does not purport to, do the work of nature, and create one a child who by nature is a stranger. But it can and does fix the status of the adoptive child to the adoptive parent as substantially the same as the status of a natural child. By the act of adoption, the child becomes, in a legal sense, the child of the adoptive parent. The general effect of adoption therefore is, with few exceptions, to place the parties in the legal relation of parent and child, with all the legal consequences. The law declares the status, and from the status, as a necessary consequence, spring the ordinary rights, duties, and liabilities which arise out of the same status created by nature." (Our italics.)

Following that excerpt, and on page 315, he points out that some statutes only provide for the adoption of an heir, and in such cases the above status is not created; but he furthermore says that, where, by the proceeding, such status is created, the adoptive parent...