State v. Brims

• Decision Date: 12 June 1923
• Docket Number: No. 17814.,17814.
• Citation: 253 S.W. 420,212 Mo. App. 221
• Parties: STATE v. BEIMS.
• Court: Missouri Court of Appeals

253 S.W. 420

212 Mo. App. 221

STATE v. BEIMS.

No. 17814.

St. Louis Court of Appeals. Missouri.

June 12, 1923.

Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge.

Edmond A. Beims was convicted of failure and refusal to provide for his lawful child under the age of 16 years, and he appeals. Reversed.

Julius T. Muench, of St. Louis, for appellant.

A. L. Schweitzer, Pros. Atty., E. W. Foristel, and O. J. Mudd, all of St. Louis, for the State.

NIPPER, C.

Defendant was proceeded against by information filed by the prosecuting attorney and lodged in the St. Louis court of criminal correction. He is charged with failing and refusing to provide for his lawful child under the age of 16 years, to wit, aged 1 year and 9 months. The statute under which this proceeding is had may be found in the Laws of 1921, pp. 281 and 282, which section, in so far as it has any pertinent application here, is as follows:

"If any man or woman shall, without good cause, * * * fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child or children born in or out of wedlock, under the age of sixteen years * * * then such person shall * * * be punished by imprisonment," etc.

Defendant and his wife, who prior to her marriage was Mildred Bleyer, were married on August 1, 1918. About 10 or 11 days thereafter, the defendant, who had been drafted, entered the service, and remained until the day before Christmas, 1918. After defendant's return from the army, he and his wife lived together in a house belonging to the wife's father, on Washington avenue, in the city of St. Louis. Defendant and his wife, the wife's father, her grandmother, and her father's brother made In the family which lived in this home. About the 20th of October, 1920, defendant went to Kansas City, and on January 14, 1921, defendant's wife obtained a divorce from him. The care and custody of the child was awarded to the mother, but no provision was made for its support.

The divorced wife of defendant testified that, for several months prior to the date of the trial defendant had contributed very little to the child's support—"no more than about $10 per month before he left on October 20. 1920." After that time, and up to August 12, 1921, he had sent only $10. She stated she did not know whether or not defendant was employed. On cross-examination she testified that she was awarded the custody of the child by agreement with the defendant; that this agreement was entered into with defendant by her father, who is a member of the bar of the city of St. Louis. She testified that she was living with her father at the time of the divorce, and had been living with him ever since; that her father owned the home in which they lived, and that the child is being provided for there; "it is suffering no want, it is not in any way neglected, and is being properly taken care of in every way."

Mrs. Beim's father testified that, since October, 1920, both the child and its mother had been residing with him and his mother; that the daughter had been providing for the child out of an allowance which he gave her; that the defendant had not contributed anything to the support of the child in ten months. After the defendant's return from the army he did not know whether he had ever been employed, but defendant had informed him that he had. This was all the evidence offered on the part of the state.

Counsel for the defendant asked that he be discharged, but the court overruled this motion.

Defendant testified that he was 24 years old; that he had left the home in which he and his wife had been living on October 20, 1920, and had been in Kansas City from that time until the time the decree of divorce was granted. He testified that, until the 12th of August, 1921, he had been selling "check protectors," but had made very little above his expenses and the necessaries of life. He went to work for this company in January, 1921. After he returned from the army, and until he left for Kansas City on October 20, 1920, he and his wife had lived at the home of her father, as stated.

On cross-examination defendant stated he was 6 feet 1 inch tall, and weighed about 173 pounds, and was in perfect health; that his father is president of the Claes & Lehnbeuter Manufacturing Company. He says he sent $10 to the child after he left, and that prior to the divorce he had also sent a check to the wife for $50. This child was born on October 21, 1919. The offense for which defendant was tried was alleged to have been committed on August 12, 1921. From October, 1919, to May, 1920, he stated he was making $150 a month, and, while he contributed to the support of the child, he could not state definitely just how much. He also testified that he had had a talk with his wife's father, Mr. Bleyer, about the 12th of August, with respect to the support of this child. Mr. Bleyer, he said, wanted $50 a month, and $350 back pay, and stated to the defendant that it was immaterial whether he paid or not, as he would rather send him to the penitentiary than to have the money. At the time he left, the child was being taken care of, all of its wants were looked after and provided for when he lived there, and when he last heard of the child, and that he had made inquiries as to its condition and how it was being provided for.

In rebuttal, Mrs. Beims testified that defendant never spent more than $10 in any one month for the child when he was making $150 a month, and that the $50 was sent her by defendant in October or November 1920; and further stated: am the only child of my father, and am in comfortable circumstances, living in a good home; and the child is provided with every possible comfort."

It further appears from defendant's testimony that when he began selling the check protectors his mother advanced him $1,000. He purchased 27, and had $300 left. During the eight months in which he was engaged in selling these check protectors he lost money, and as soon as he sold what he had purchased he quit and came back to St. Louis. This was in August, 1921. It was at this time that he discussed with his father-in-law, Mr. Bleyer, the question of contributing to the support of his child, and was told by Mr. Bleyer that he must contribute $50 a month, and pay $350 back pay, or he would be sent "over the road." At that time he says ha had no money, no job, nor any bank account. After he returned from the army, at the suggestion of his wife and her father, he went to live in their home, which was a nine-room, well-furnished house. The father of his former wife is an attorney at law, and he attended to the legal business in connection with the divorce and arrangements concerning alimony. Defendant testified that he did not know at the time he was discussing the question, of support for the child that any prosecution had been instituted against him. Prior to the time he left his wife, and after his return from the army, he was earning $150 a month, and during all the time he was at this home he says he contributed to the support of the wife and child, although he did not remember the exact or definite amount given in any one month. He also testified that he had written to his wife and told her that any time the child was sick or he could do anything, he would be only too glad to do it.

Defendant was found guilty, and his punishment fixed at one year in the workhouse. The question before us for our consideration on this appeal is, Will this record sustain a conviction for the offense described in the statute? A very similar question was before our Supreme Court in State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 D. R. A. (N. S.) 841. The statute under which the proceeding was there had was as follows:

"If any * * * father of any such infant child, born in on legitimatized by lawful wedlock shall, without lawful excuse, refuse or neglect to provide for such infant * * * necessary food, clothing, or lodging, or shall unlawfully and purposely assault such infant * * * whereby his life shall be endangered or his health shall have been or shall be likely to be permanently injured, the person so offending shall, upon conviction, be punished by imprisonment," etc. Rev. St. 1909, § 4492.

In the Thornton Case the defendant married on October 21, 1907, and lived with his wife until February, 1909, when they separated. The wife went to her father's house, where she lived until the date of the trial. The wife took with her the one child which had been born of the marriage. Later there was a second child born at her father's house. The children were supplied by the wife's father up to the date of the trial with all necessary food, clothing, and lodging; and it appeared in that case, as here, from the mother's testimony, that the children were well taken care of. The court held that a conviction under the statute last quoted could not be sustained. The court stated, 232 Mo. loc. cit. 305, 134 S. W. 520, 32 L. R. A. (N. S.) 841:

"The statute penalizes the refusal of the father to supply necessary food, etc. Under the law pertaining to necessaries, a necessary article is one which the party actually needs. It is not enough to show that the article is per se classed as necessary, such as food and clothing. It must also be actually needed at the time."

The effect of the holding in State v. Thornton, supra, is that a conviction cannot be had under such circumstances if, at the time the alleged offense was committed, the child or children are being well provided for by the wife or her father. Our Supreme Court cites two decisions in that opinion as sustaining the views therein expressed, one, Dalton v. State, 118 Ga. 196, 44 S. E. 977, the other, Richie v. Commonwealth, 64 S. W. 979, the last case being an opinion of the Court of Appeals of Kentucky. The Kentucky case was based upon a statute which imposed a penalty against a parent who deserted a child "in a manner showing...