Gilmour v. State, 28836

• Decision Date: 06 March 1952
• Docket Number: No. 28836,28836
• Citation: 104 N.E.2d 127,230 Ind. 454
• Parties: GILMOUR v. STATE.
• Court: Indiana Supreme Court

Page 127

104 N.E.2d 127

230 Ind. 454

GILMOUR v. STATE.

No. 28836.

Supreme Court of Indiana.

March 6, 1952.

David A. Myers, Greensburg, for appellant.

J. Emmett McManamon, Atty. Gen., Wm. T. McClain, Depty. Atty. Gen., John Ready O'Connor, Depty. Atty. Gen., for appellee.

JASPER, Judge.

Appellant was charged by affidavit with wilfully neglecting and refusing to provide his children with necessary and proper home care, food, and clothing, under § 10-1402, ¹ Burns' 1942 Replacement. He filed a plea and a supplemental plea in abatement, challenging the jurisdiction of the Rush Circuit Court, to which demurrers were filed and sustained. A plea of not guilty was entered, trial by jury was waived, there was a finding and judgment of guilty, and sentence followed.

The sole error presented is the action of the trial court in sustaining the demurrers to the plea in abatement and the supplemental plea in abatement.

The plea and supplemental plea in abatement show, among other things, that appellant and the prosecuting witness were married on November 27, 1937, as a result of which they had four children; that a divorce was granted to them on March 2, 1945, by the Decatur Circuit Court; that custody of the four children, all under fourteen years of age, was given to the prosecuting witness; that appellant was ordered to pay to the Clerk of the Decatur Circuit Court the sum of $18 per week, for the use, benefit, and care of the children; that on November 12, 1949, appellant was delinquent in his support payments, and contempt proceedings were filed ordering appellant to show cause; that a hearing was had and the matter taken under advisement; that on April 15, 1950, the prosecuting witness again filed contempt proceedings; that a hearing was had and the court took the matter under advisement; that the affidavit charging the criminal offense was filed against appellant on August 10, 1950. Appellant's supplemental plea in abatement further shows that the Decatur Circuit Court still had jurisdiction over appellant, with power to make such orders as it might deem fit to provide proper care, food, and clothing for said children; that the application of the prosecuting witness to require appellant to show cause why the support money had not been fully paid, and that he be punished for contempt of court, was under advisement by the Decatur Circuit Court; further, that appellant had applied all money to such support order that it was possible for him to do under his weekly wages.

Appellant contends that the Rush Circuit Court did not have jurisdiction in the case at bar, and that the filing of the criminal affidavit was a collateral attack upon the jurisdiction of the Decatur Circuit, Court. This court has said that a court having jurisdiction of the subject-matter and of the parties must also have jurisdiction of the particular case. State ex rel. Ferger v. Circuit Court, 1949, 227 Ind. 212, 84 N.E.2d 585. This court has further said that where the crime charged is an omission to do an act, the venue ² of the offense is in the county where the act should have been performed. The act in the case at bar to be performed was the support of the children. The place to perform the act, the omission of which act resulted in the crime charged, was in Rush County where the children resided. State v. Yocum, 1914, 182 Ind. 478, 106 N.E. 705. See, also, United States v. Anderson, 1946, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529. The affidavit filed in the Rush Circuit Court charged a criminal offense, and the action pending in the Decatur Circuit Court charged a civil contempt. Perry v. Pernet, 1905, 165 Ind. 67, 74 N.E. 609. The Decatur Circuit Court could only coerce appellant into doing an affirmative act. It could not punish him for the criminal offense charged under § 10-1402, Burns' 1942 Replacement. State ex rel. McMinn v. Gentry, 1951, 229 Ind. 615, 100 N.E.2d 676. The criminal offense charged was not a collateral attack upon the jurisdiction of the Decatur Circuit Court. ³ The Decatur Circuit Court, under § 3-1219, Burns' 1946...