Crumley v. State
| Citation | 184 N.E. 533,204 Ind. 396 |
| Decision Date | 20 February 1933 |
| Docket Number | No. 26127.,26127. |
| Parties | CRUMLEY v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fountain County; O. B. Rateliff, Judge.
Fred Crumley was convicted of child desertion and he appeals.
Reversed.
A. T. Livengood, of Covington, for appellant.
James M. Ogden, Atty. Gen., and James T. Dowling, Deputy Atty. Gen., for the State.
Appellant was charged by affidavit with the crime of child desertion under section 2867, Burns' Ann. St. 1926, tried before the court, convicted, and sentenced to the Indiana reformatory for not less than one year and not more than seven years, and that he pay the cost and charges taxed at $20.45.
Appellant filed his motion in arrest of judgment, motion to be discharged, and a motion for a new trial, each of which motions were overruled and he appeals. The affidavit charges: “That Fred Crumley was then and there the father of Leona Crumley, age 4 years, Marvin, age 2 years, children under the age of 14 years, did then and there unlawfully desert the said Leona Crumley, and Marvin Crumley, at Fountain county, Indiana, that said Fred Crumley did then and there wilfully, unlawfully and feloniously neglect and refuse to provide his children with necessary and proper home, care, food and clothing, contrary to the form of the statutes,” etc.
Appellant's second ground stated in his motion in arrest of judgment is: “That the facts stated in the said affidavit do not constitute a public offense under the laws of the state of Indiana.”
Under this assignment of error, he makes the point that, in order to state a public offense under this section of the statute, it is necessary that the affidavit allege that the children, named therein, were living in the state of Indiana at the time of the desertion, and that the affidavit herein contained no such allegation.
Appellee contends that the words “at and in Fountain county, Indiana,” following the words “Marvin Crumley,” in the body of the affidavit sufficiently alleges that said children were living “in this state.” We think not. The words, “at and in Fountain county, Indiana” do not refer to the residence of the party, but to the place where the desertion took place. Appellant might have deserted his children in Fountain county, Indiana, while living in some other state. We think it clear that the affidavit herein is lacking in any such allegation.
This court in the case of Groenendyk v. State (1926) 197 Ind. 697, 151 N. E. 730, 731, in discussing the necessity of such an allegation said:
It is true, while an indictment or affidavit is not subject to the same test by motion in arrest, as it is by motion to quash, yet by the terms of section 2326, Burns' Ann. St. 1926, it must, on motion in arrest, state facts sufficient to constitute a public offense. A material fact, constituting the offense, if stated in defective manner or form, may on motion to quash render the indictment or information insufficient, while such defect on motion in arrest would be cured by verdict. Woodworth v. State (1896) 145 Ind. 276, 43 N. E. 933, and cases cited. Here there is no attempt by averment, directly or indirectly, defective, uncertain, or otherwise to charge that the children were living in this state, and, consequently, we are dealing not with a defective or uncertain averment that would be cured by verdict, but with the entire absence of an essential averment. For this reason the affidavit herein did not charge a public offense.
Section 2867, Burns' Ann. St. 1926, Acts 1913, p. 956, c. 358, § 2, as amended Acts 1915, p. 654, c. 179, defines the crime of child desertion thus: “The father, or, when charged...
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