Redewill v. Superior Court of Maricopa County

Decision Date05 February 1934
Docket NumberCivil 3373
Citation43 Ariz. 68,29 P.2d 475
CourtArizona Supreme Court

Original proceeding for Writ of Prohibition. Writ of Prohibition made permanent.

Mr Will E. Ryan, for Plaintiff.

Mr Renz L. Jennings, Mr. M. L. Ollerton and Mr. Frank H. Lyman for Defendants.



This is an original proceeding wherein Victor Anson Redewill, hereinafter called petitioner, seeks a writ of prohibition against the superior court of Maricopa county and the Honorable M. T. PHELPS as judge thereof, restraining said judge from the pronouncing of sentence in criminal cause No. 10171, now pending against petitioner in that court.

The facts are not in dispute and may be stated as follows: The criminal case above referred to was one wherein petitioner was charged with failure to provide for his minor child, Victor Gilden Redewill, under the provisions of section 4635, Revised Code 1928. On the fifth day of March, 1930, petitioner pleaded guilty to the charge and the trial court suspended the pronouncing of sentence, making the following order:

"It is therefore ordered, adjudged and decreed according to the statutes of the State of Arizona, in such case made and provided, that the passing of sentence in this cause committing you Victor Anson Redewill, to the State Penitentiary, at Florence, Arizona, be suspended for a term of five (5) years from date, and that you Victor Anson Redewill be placed on probation under the charge and supervision of the Adult Probation Officer of this Court, and that you Victor Anson Redewill shall be permitted to go at large, upon the condition that you pay to the adult probation officer for the use and benefit of your son the amount of fifty dollars per month for the first year, seventy-five dollars per month for the second year, and one hundred dollars per month for the third, fourth and fifth years, or to the end of the sentence for the purpose that this amount will carry this boy over during the period of his education; first payment to be made within thirty days."

Petitioner complied fully with the above conditions until the 5th of June, 1931, when the following order was made by the trial court:

"It is ordered reducing the amount of monthly payments to be made by the defendant from $75.00 per month to $65.00 per month. Dated June 5th, 1931."

This order was also complied with until the payment which was due on the fifth day of May, 1933. On May 16, 1933, petitioner moved that the conditions of his probation be vacated, alleging that the minor child referred to in such conditions had reached the age of twenty-one years. When the matter was presented to the trial judge, he denied the motion and stated in effect that if petitioner did not comply with the conditions of suspension of sentence, as above set forth, he would be apprehended and sentence imposed. As a result, petitioner, claiming that the order of the court requiring the payment for the support of his child beyond the majority of such child was void and in excess of its jurisdiction, initiated these proceedings.

The writ of prohibition at the present time is used to prevent an inferior court or tribunal from assuming a jurisdiction with which it is not legally vested in cases where wrong, damage, and injustice are likely to follow from the action. 22 R.C.L. 4. There has been much question whether the granting or refusal of the writ is discretionary or a matter of right, but it is generally held in modern times that while the writ is a matter of right where there is no other remedy, when there is a remedy by appeal, or otherwise, the granting or refusal of the writ is discretionary with the appellate tribunal. Smith v. Whitney, 11l U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601. This discretion should be used in the interest of justice and when, as in the present case, it appears that unless a writ of prohibition issues the result will be the incarceration of petitioner in the penitentiary where he must remain for several months pending the slow process of an appeal, and if it also appears that the threatened action would be in excess of the jurisdiction of the trial court or an abuse of its discretion, we think that the appellate court may and should grant the writ. Van Dyke v. Superior Court, 24 Ariz. 508, 211 P. 576.

We therefore consider the case on its merits. Section 4635, to a violation of which petitioner pleaded guilty, reads as follows:

"§ 4635. Failure of parent to provide for minor child. A parent who wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter or medical attendance for his or her minor child is guilty of a felony."

We have previously construed section 249, Penal Code 1913, of which section 4635, supra, is a re-enactment, in the case of Branham v. State, 33 Ariz. 170, 263 P. 1, 3, and have stated therein:

"Section 249 makes it the duty of parents of children to care for them in the manner and to the extent therein provided. The duty is specified and enjoined 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.' People v. Pierson [176 N.Y. 201, 68 N.E. 243, 98 Am. St. Rep. 666, 63 L.R.A. 187], supra."

And it is only for the failure to do this that a parent is liable criminally. It is true that in the same case we stated that the quantum or standard of such duty is well set forth in State v. Waller, 90 Kan. 829, 136 P. 215, 216, 49 L.R.A. (N.S.) 588, as follows:

"He is obliged to provide such a place of abode, such furniture, such articles of food, wearing apparel, and use such medicines, medical attention, and nursing, such means for the education of children, and such social protection and opportunity as comport with health, comfort, welfare, and normal living of human beings according to present standards of civilization, considering his own means, earning capacity, and station in life."

We think, however, that the last statement was too broad when used in reference to the requirements of section 249, supra. In the case of State v. Waller, the Kansas statute (Laws 1911, chap. 163, § 1) reads that "any parent who shall, without lawful excuse, desert or neglect or refuse to provide for the support and maintenance of his or her child or children . . . " shall be guilty of a crime. The language is "support and maintenance" without specifying what should be included therein, and the court held in substance that the words referred to the duty imposed on a parent by the common law. It will be noted, however, the language of our statute does not use either the words "support" or "maintenance," or any synonym thereof, but specifies certain items necessary for the physical well-being of the child alone, without any reference to those required for its mental and moral development. We think the rule of expressio unius est exclusio alterius applies, especially since this is a penal statute, and that it is not a violation of the section for a parent to refuse to educate his minor child, or to decline to render any assistance to one who has reached its majority, although he is liable civilly in the one case, and may rightly be subject to severe censure by society in the other. Such being the case, we hold that so long as petitioner provided the things required for physical maintenance, as set forth in the statute, he was not guilty of a violation thereof, no matter how derelict he might be in the moral and common-law duty imposed upon him to provide for the mental and moral development of his child in accordance with his circumstances in life.

There are two sections of the Code providing for the suspension of sentence. The first is section 4637, which uses the following language:

"§ 4637. Bond by husband; suspending proceedings. After arrest, conviction, or plea of guilty under either of the two preceding sections, and before sentence, if the defendant shall enter into an undertaking with sureties to the state of Arizona in such penal sum as the court may fix and approve, conditioned that the defendant will furnish said minor child or wife, with necessary food, clothing, shelter or medical attendance, the court may suspend proceedings or sentence thereon. Said undertaking shall be valid and binding for one year, and upon the failure of the defendant to comply with said undertaking, he may be ordered to appear before the court and show cause why further proceedings should not be had in said action, or sentence imposed; whereupon the court may proceed with said action or pass sentence, or may modify the order and take a new undertaking and further suspend proceedings or sentence for a like period."

The second is section 5105, which reads as follows:

"§ 5105. Suspending judgment; revocation pronouncing judgment; discharge. After plea or verdict of guilty, where discretion is conferred upon the court as to the extent of the punishment, the court, upon oral suggestions of either party that there are circumstances in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time and upon such notice to the adverse party as it may direct. If it shall appear that there are circumstances in mitigation of the punishment, or that the ends of justice will be subserved thereby, the court shall have power, in its discretion, to place the defendant upon probation in the manner following: 1. The court, judge or justice thereof, may...

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