Imperial v. State
| Decision Date | 20 January 1947 |
| Docket Number | 968 |
| Citation | 65 Ariz. 150,176 P.2d 688 |
| Parties | IMPERIAL v. STATE |
| Court | Arizona Supreme Court |
Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Francisco Imperial was accused of the crime of failure to provide for minor children, and he moved to quash the information. From an order denying the motion to quash, the defendant appeals.
Appeal dismissed.
Harry J. Valentine and Ralph Estrada, both of Phoenix, for appellant.
John L Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Edwin Beauchamp, Co. Atty., and R. H. Renaud, Deputy Co. Atty., both of Phoenix, for appellee.
La Prade, Judge.
Defendant was accused of the crime of failure to provide for minor children, a felony. A portion of the charge reads as follows:
"The said Francisco Imperial * * * being then and there the parent of certain minor children, the parentage of said children having been made and entered the 26th day of April, 1941 in a bastardy proceedings in this Court, to-wit: (children's names) did then and there wilfully and without lawful excuse fail, neglect and omit to furnish the said minor children with necessary food, clothing, shelter and medical attendance; * * *."
To this information defendant filed a motion to quash upon the ground that the criminal statute under which the prosecution was instituted was not broad enough to include the subject of support of illegitimate children. The motion to quash was denied. This appeal is from that order.
This attempted appeal does not lie for the reason that no appeal may be taken from an order denying a motion to quash an information. Section 44-2506, A.C.A.1939.
Inasmuch as the subject matter and grounds for the attempted appeal, a repetition of the motion to quash, are of prime importance to citizens of the state, its courts and law enforcement officers, we feel that we should take cognizance of them and state our views thereon.
The appellant argues that inasmuch as the provisions of the Arizona law making it a felony for any parent who wilfully omits, without lawful excuse, to furnish necessary food clothing, shelter, or medical attendance for his or her minor children contain no reference therein to any child born out of wedlock, there was no offense over which the superior court had jurisdiction. The statute under consideration reads as follows:
It is appellant's position that inasmuch as this statute does not specifically include "illegitimate children" the presumption is that the legislature intended the criminal statute to be applicable only to parents of children born in wedlock, and that if recourse is to be had against a parent of a child born out of wedlock it must be through the remedial provisions of statutes relating to "Bastards." Ch. 27, Art. 4, A.C.A.1939.
The courts of many states have had this particular problem before them upon numerous occasions, and have almost universally held that a criminal statute such as ours does not include an illegitimate child in the absence of a clear indication of its applicability. For collection of cases see 30 A.L.R., p. 1075. Typical of the expressions to be found is that in the case of Moss v. United States, 1907, 29 App.D.C. 188, 194, where the court said:
"We are convinced that the terms 'parent or guardian,' 'father or mother,' 'father and mother,' so often occurring, cannot be construed to relate to a man charged with being the father of a bastard child, but mean lawful parents; and 'that any person' means the lawful parent or guardian of such child. * * *"
In State v. Miller, 1902, 3 Pennewill, Del., 518, 52 A. 262, 263, the court had before it the applicability of a Delaware statute requiring a father to support his children. The court said:
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Anderson v. Holder
...the Arizona Code Annotated of 1939, reading: “Every child is the legitimate child of its natural parents....” See Imperial v. State, 65 Ariz. 150, 152, 176 P.2d 688 (1947). In 1956, § 27–401 was recodified as § 14–206. On January 1, 1974, § 14–206 was repealed and replaced by §§ 14–2109 and......
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State v. Thompson, 990
... ... in the state penitentiary. Defendant filed a motion for new ... trial and motion in arrest of judgment both of which were ... denied before judgment was pronounced. This is an appeal from ... the final judgment of conviction. Section 44-2506(a), ... A.C.A.1939; Imperial v. State, 65 Ariz. 150, 176 ... P.2d 688 ... While ... defendant has advanced some twenty-one assignments of error ... and numerous propositions of law, we believe that the appeal ... can be effectually disposed of by considering only one ... assignment (the fourteenth), which ... ...
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Moreno v. Superior Court of Pima County
...illegitimacy. In speaking of the predecessor statute to A.R.S. § 13--801, our Supreme Court had this to say in Imperial v. State, 65 Ariz. 150, 151, 152, 176 P.2d 688, 689 (1947): 'The courts of many states have had this particular problem before them upon numerous occasions, and have almos......