People v. Chiafreddo

• Decision Date: 18 November 1942
• Docket Number: No. 26896.,26896.
• Citation: 381 Ill. 214,44 N.E.2d 888
• Parties: PEOPLE v. CHIAFREDDO et al.
• Court: Illinois Supreme Court

381 Ill. 214

44 N.E.2d 888

PEOPLE

v.CHIAFREDDO et al.

No. 26896.

Supreme Court of Illinois.

Nov. 18, 1942.

Error to Vermilion County Court; Harlin M. Steely, Jr., Judge.

Joseph Chiafreddo and Ruth Chiafreddo were convicted of contributing to the dependency of their minor child, and they bring error.

Judgment reversed.Hayden C. Covington, of Brooklyn, N.Y., John F. Twomey, of Danville, and Karl M. Milgrom, of Chicago, for plaintiffs in error.

George F. Barrett, Atty. Gen., and William T. Henderson, State's Atty., of Danville (John T. Allen, John W. Unger, and Frank J. Meyer, all of Danville, of counsel), for the People.

SMITH, Justice.

Plaintiffs in error were found guilty by a jury in the county court of Vermilion county of the offense of contributing to the dependency of their minor child. Judgment was entered on the verdict. Joseph Chiafreddo was sentenced to the Illinois State Farm for the term of one year. Ruth Chiafreddo was sentenced to the Illinois Women's Reformatory for the term of one year.

To reverse the judgment of the trial court, plaintiffs in error contend: first, that the section of the statute on which the information was based violates the first and fourteenth amendments to the constitution of the United States, and certain sections of article II of the constitution of Illinois, Smith-Hurd Stats.; second, that the regulation requiring children to salute the flag in the public school attended by the child of plaintiffs in error, contravenes the right of free speech and freedom of worship guaranteed by various sections of the constitution of Illinois; third, that when the statute under which plaintiffs in error were convicted, is properly construed, they are not guilty of a violation of the statute.

In order to properly consider the questions raised, it will be necessary to set out the two sections of the statute involved, which is entitled ‘An Act to define and punish the crime of contributing to the dependency and neglect of children.’ Ill.Rev.Stat.1941, chap. 38, par. 100, et seq. Section 1 of the act defines a dependent or neglected child, and in so far as here material, is in the following language:

‘For the purposes of this Act a dependent and neglected child shall mean any male who while under the age of 17 years or any female who while under the age of 18 years, for any reason is destitute, homeless or abandoned; or dependent upon the public for support; or has not proper parental care or guardianship; or habitually begs or receives alms; or is found living in any house of ill fame or with any vicious or disreputable person; or has a home which by reason of neglect, cruelty or depravity on the part of its parents, guardian or any other person in whose care it may be is an unfit place for such child; and any child who while under the age of ten years is found begging, peddling or selling any articles or singing or playing any musical instrument for gain upon the street or giving any public entertainments or accompanies or is used in aid of any person so doing.’

Section 2 of the act provides a penalty for contributing to the dependency or neglect of a child. The material part of that section reads as follows:

‘Any parent, legal guardian or person having the custody of a male under the age of 17 years or of a female under the age of 18 years, who shall knowingly or wilfully cause, aid or encourage such person to be or to become a dependent and neglected child as defined in section 1, or who shall knowingly or wilfully do acts which directly tend to render any such child so dependent and neglected, or who shall knowingly or wilfully fail to do that which will directly tend to prevent such state of dependency and neglect shall be deemed guilty of the crime of contributing to the dependency and neglect of children and on conviction thereof shall be punished by a fine of not more than $200.00 or by imprisonment in the county jail, house of correction or workhouse for not more than one year or both by such fine and imprisonment.’

The information on which plaintiffs in error were tried, contains only one count. After alleging that they were the parents of Joseph Chiafreddo, Jr., it charged, in the language of the statute, that they did ‘unlawfully, knowingly and wilfully do acts which directly tend to render the said Joseph Chiafreddo, Jr., a dependent and neglected child, and knowingly, unlawfully and wilfully failed to do that which would directly tend to prevent such state of dependency and neglect by not then and there giving the said Joseph Chiafreddo, Jr., proper parental care and guardianship and did then and there send said child to a public school and did then and there knowingly, unlawfully and wilfully advise and direct said child to refuse to salute the American flag, a lawful activity of said school as provided by the lawful authorities thereof.’ The jury by their verdict found plaintiffs in error ‘guilty in manner and form as charged in the information.’

There is no substantial controversy as to the facts. The evidence offered by the People consists of the testimony of the teacher of the school attended by Joseph Chiafreddo, Jr., and that of the superintendent of the elementary schools, of which that school was a part, and the testimony of the assistant probation officer. From the testimony, it appears that Joseph Chiafreddo, Jr., attended school 37 days prior to October 23, 1941.

On that day the teacher noticed that during the morning exercises he did not join in the salute or pledge to the flag. He talked to the boy at recess and was told by him that he could not join in the pledge to the flag because it was an idol or some emblem to which he could not pledge because of his religious belief. The superintendent testified that he talked to the boy's mother, explaining the requirements, and that it was one of the ways in which they taught patriotism; that Mrs. Chiafreddo upheld her son in his refusal. The assistant truant officer testified that Mrs. Chiafreddo thereafter told him that her son was not allowed to go to school because he refused to salute the flag; that the teacher had sent him home for that reason. It appears from the evidence offered on behalf of the People that after it was discovered that he was not joining in the salute to the flag, the boy was expelled from school on that account. The People also called the child as a witness. He testified that he was expelled from school because he refused to join in the salute to the flag; that he had told his father and mother that he was sent home from school on that account; that his father and mother told him ‘you do your own will’; that they told him he could salute the flag or not as he might decide for himself; if he wanted to go back to school and salute the flag it was agreeable to them, but that he could determine for himself whether he would do that. In this he was corroborated by his parents, who both testified as witnesses in the case. Defendants proved by a neighbor who was not a member of the same religious sect that she had lived next door to plaintiffs in error for some five years; that she visited in the Chiafreddo home and knew the boy; that during those five years she had never known the child to be in what of clothes or food or to run around on the streets; that he had never been away from home for any length of time; that she had never seen him beg or do anything like that on the streets; that he had always been properly clothed; that he had never been in a home, which by reason of neglect, cruelty or depravity on the part of his parents or any other person, was an unfit place for the child; that he had never played any musical instruments on the streets; that he had never been destitute, abandoned or dependent upon the public.

Proper and timely motions were made for a directed verdict at the close of the People's evidence, and at the close of all the evidence. By these motions the sufficiency of the evidence to sustain a conviction under the applicable statute was properly raised. By a motion in arrest of judgment the sufficiency of the information was challenged and that question was properly preserved. People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348. All such objections were denied and overruled by the trial court.

The constitutional questions raised are sufficient to give this court jurisdiction to review the judgment entered by the trial court. But, as we view the record, it will not be necessary to determine or to consider the constitutionality of the statute involved. In our judgment the only question necessary to be considered on this review is the sufficiency of the information and of the evidence to support the conviction under the statute. It is the established rule of this court that a constitutional question will not be considered if the case can be decided without doing so. People ex rel. Novotny v. Jarecki, 372 Ill. 208, 23 N.E.2d 60;People v. Adams, 351 Ill. 79, 183 N.E. 810;McEniry v. Tri-City Railway Co., 254 Ill. 99, 98 N.E. 227;Illinois Central Railroad Co. v. Chicago & Great Western Railway Co., 246 Ill. 620, 93 N.E. 44.

It will be noted that the first part of the charge in the information is in the language of the statute. That part of the charge is that plaintiffs in error did ‘unlawfully, knowingly and wilfully, do acts which directly tended to render the said Joseph Chiafreddo, Jr., a dependent and neglected child, and knowingly, unlawfully and wilfully failed to do that which would directly tend to prevent such state of dependency and neglect by not then and there giving the said Joseph Chiafreddo, Jr., proper parental care and guardianship.’ Section 1 of the act above quoted defines a dependent and neglected child and section 2...