Law v. State

• Decision Date: 07 March 1939
• Docket Number: 1 Div. 312.
• Citation: 191 So. 801,29 Ala.App. 88
• Parties: LAW v. STATE.
• Court: Alabama Court of Appeals

191 So. 801

29 Ala.App. 88

LAW v. STATE.

1 Div. 312.

Court of Appeals of Alabama

March 7, 1939

Rehearing Denied June 30, 1939.

Reversed on Mandate Oct. 31, 1939.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Yulla alias Yuille, Law was convicted of failing to support his minor child, and he appeals.

Affirmed.

Certiorari granted by Supreme Court in Law v. State, 191 So 803.

George A. Sossaman of Mobile, for appellant.

Thos S. Lawson, Atty. Gen., and Edwina Mitchell and Wm. H. Loeb, Asst. Attys. Gen., for the State.

RICE Judge.

James Ella Walker, the mother of a thirteen year old bastard son who bore the name of Leon Law, made affidavit in the Juvenile Court of Mobile County containing the following, to-wit: "Yulla Law, a parent, did, within twelve months before making this affidavit, without lawful excuse, desert, or wilfully neglect, or refuse to provide for the support and maintenance of his one child under the age of eighteen years, the said child--then and there in destitute or necessitous circumstances--in Mobile County, Alabama."

Warrant of arrest was duly issued, and appellant was duly put upon trial in said Juvenile Court, upon the charge quoted above from said affidavit. He was there found guilty; but, as quoted from the transcript from that court filed in the circuit court, on appeal: "imposition of sentence is suspended on condition defendant pay into court $2.00 on the 8th and 15th, and on the 1st and 22nd of each month, commencing on the 2nd day of May 1938."

In the circuit court, on appeal, appellant agreed to go to trial, and did go to trial, on the original affidavit--quoted, essentially, hereinabove.

He was there found guilty, but to quote from the transcript sent up here: "imposition of sentence is hereby suspended on condition that defendant pay into the Juvenile Court of Mobile County, Alabama, two dollars a week beginning Monday, May 23, 1938, towards the support of his one child as referred to in the original affidavit."

So he brings this appeal.

It is plain enough appellant was charged with a violation of the terms of Code 1923, Sec. 4480,--a part of Chapter 157 of the Code, sometimes said to be the Chapter dealing with "Desertion and Non-Support."

It appearing that there had never been a judicial determination, under the bastardy Statutes, Code 1923, Secs. 3416-3439, of the fact that appellant was the father of Leon Law, appellant stoutly contends that this prosecution, under the Desertion and Non-Support Statutes, Code 1923, Secs. 4479-4495, will not lie,--appellant's able counsel arguing that the question whether or not appellant had ever acknowledged Leon Law as his child could not be here litigated.

True, in denying writ of certiorari to this court in the case of Coan v. State, 25 Ala.App. 62, 141 So. 262; Id., 224 Ala. 584, 141 So. 263, the Supreme Court, speaking through Mr. Justice Brown, used this language: "These last-mentioned sections (sections 4479-4495) make no provision for a judicial determination of the paternity of the child, and until there is such judicial determination under the bastardy statutes, they have no application to bastard children, unless the putative father acknowledges the child as his child. But where the paternity of the child has been judicially established, or is acknowledged by the putative father, the proceedings provided by sections 4479-4495 may be instituted to enforce the duty of support." Citing our case of Patterson v. State, 23 Ala.App. 342, 127 So. 792, certiorari denied 221 Ala. 96, 127 So. 793. And the learned Justice speaking for the Supreme Court in this Coan case went on to say,--referring to these "Desertion and Non-Support Statutes"--: "Such statutes do not impinge constitutional provisions prohibiting imprisonment for debt."

Now because in our case of Patterson v. State, supra, cited by the Supreme Court in its opinion denying certiorari in the Coan case, the defendant (appellant) did, presently acknowledge that the child in question was his child; and because in its opinion in the Coan case the Supreme Court used the language "unless the putative father acknowledges [present tense] the child as his child," appellant argues that the possible, provable, fact that the defendant had, all along, perhaps, up to the day of trial, acknowledged that the "child was his child" could not avail to warrant the proceeding under these "Desertion and Non-Support Statutes," if only defendant saw fit to deny on the trial that he had ever "acknowledged the child as his...