Owens v. State

• Decision Date: 20 June 1911
• Parties: OWENS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

116 P. 345

6 Okla.Crim. 110

OWENS v. STATE.

Court of Criminal Appeals of Oklahoma

June 20, 1911

Syllabus by the Court.

(a) Under the statutes of this state, it is the duty of a parent having custody of a minor child to support and educate such child; and such "support" includes necessary medical attendance to preserve the health and life of such child.

(b) A reasonable construction of the statutes would require the furnishing of medical treatment in such a manner and on such occasions as an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote his recovery would provide.

In a prosecution for a violation of that section of the statutes (Comp. Laws 1909, § 2369) which provides, "Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter, or medical attendance, for such child, is guilty of a misdemeanor," an instruction of the trial court that religious belief would not constitute a defense to such prosecution is correctly given.

The question of the necessity for medical treatment is a question of facts for the jury in any case for a violation of the statute, supra, and when submitted under proper instruction of the court a finding of the jury, contrary to the contentions of an accused, will not be disturbed on appeal when the evidence tends reasonably to support the finding.

Appeal from Beaver County Court; R. A. Dickson, Judge.

Lawrence Owens was convicted of a misdemeanor, and he appeals. Affirmed.

J. W Culwell, for plaintiff in error.

Smith C. Matson, Asst. Atty. Gen., for the State.

ARMSTRONG J.

An information was filed in the county court of Beaver county in July, 1909, charging plaintiff in error with willfully omitting, without lawful excuse, to furnish medical attendance to his minor child, Cora Owens.

It appears that this child was afflicted with typhoid fever during part of November and December, 1908; that the county health officer and other physicians and neighbors of the accused called upon and endeavored to induce him to permit the child to be attended by physicians and nurses. He refused to do so, even though the medical attendance was offered without expense.

In the testimony of the accused, he admits that he was acquainted with the serious nature of typhoid fever, and knew that his child was seriously ill, and offered no excuse for his conduct. The testimony on behalf of the state, and by the mother of the child, who testified on behalf of the accused discloses that the reason for refusing to provide medical attendance was on account of religious belief. On the presentation of the case in this court, that is the only question that is argued, and the only one we shall consider.

This prosecution is based on section 2369, Snyder's Statutes, which is as follows: "Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter, and medical attendance for such child, is guilty of a misdemeanor." Section 4898, Snyder's Statutes, makes it the duty of the parent who is intrusted with the custody of the child to give such child support and education. Section 4899, Id., provides that the father of a legitimate unmarried minor is entitled to the custody of such child. The word "support," as used in the statute, includes necessary medical attendance, as much so as necessary food and clothing. See Morse v. Powers, 45 Vt. 300, wherein the court says: "The plaintiff agreed that the son should have 'support for himself and family from the business,' and he was in the habit of appropriating goods for that purpose. Proper medical treatment to the sick is deemed by usage as necessary as the provision of bread to the hungry."

The trial court instructed the jury that religious belief would not constitute a defense to a prosecution under this statute. It is argued by counsel for the accused that this instruction by the court was an unwarranted invasion upon its part of the province of the jury. He says: "The defenses in this case are upon religious belief and upon the necessity of furnishing to this child in its condition medical attendance. As to whether or not his religious belief was or is a lawful excuse should have been left to the jury. ***"

We cannot agree with this contention. Under the statutes, supra, it is the duty of the parent, regardless of his religious belief or superstition, to furnish necessary food, clothing, shelter, and medical attendance to his child. A reasonable construction of these statutes would be that the parent is required to furnish the necessary food, clothing, shelter, and medical attendance looking to the preservation of the health, as well as the life, of the child. The law does not contemplate the calling of a physician or the furnishing of medical attendance for every trivial complaint with which a child may be afflicted. A reasonable amount of discretion is vested in the parents charged with the duty of maintaining and bringing up of infant children. We think that the correct rule would require the furnishing of medical treatment in such a manner and on such occasions as an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, would provide.

A leading case dealing with this particular question is People v. Pierson, 176 N.Y. 201, 68 N.E. 243, 63 L R. A. 187, 98 Am. St. Rep. 666. In that case the identical question was raised that is raised here. The statutes are identical. The court in part says: "Section 288 of the Penal Code, so far as is material upon the question under consideration, provides as follows: 'A person who (1) willfully omits, without lawful excuse, to perform a duty, by law imposed upon him, to furnish food, clothing, shelter, or medical attendance to a minor *** or (4) neglects, refuses, or omits to comply with any provisions of this section *** is guilty of a misdemeanor.' It would seem that the legislative intent in adopting this provision of the Code is reasonably clear, although possibly more precise language could have been employed. It contemplates that there are persons upon whom the law casts a duty of caring for minors, but it does not specify the persons. They are, however, those upon whom the duty is 'by law imposed.' They are designated in the statutes and in the common law as the parents, guardians, or those who, by adoption or otherwise, have assumed the relation in loco parentis. The duty of such a person is specified by the provisions of the section. It is 'to furnish food, clothing, shelter, or medical attendance.' Giving the statute a reasonable construction, by applying the rule of necessity, it is apparent that it means the necessary food, clothing, shelter, or medical attendance required for the preservation of the health and life of the child. We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household nursing by members of the family; that a reasonable amount of discretion is vested in parents charged with the duty of maintaining and bringing up infant children; and that the standard is, At what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician? *** It is now contended that section 288 of the Penal Code does not, in terms or in effect, make it the duty of any one to furnish medical attendance to a minor child, and that under the common law it is not part of the duty of parents to provide medical attendance for their children. We have already considered, in part, the provisions of the section, and have indicated our conclusion that the clause 'a duty by law imposed,' as found in this section, had reference to the person...