State v. Davis

• Decision Date: 17 April 1980
• Docket Number: No. 11366,11366
• Citation: 598 S.W.2d 189
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Carles B. and Alyne DAVIS, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 189

598 S.W.2d 189

STATE of Missouri, Plaintiff-Respondent, v. Carles B. and Alyne DAVIS, Defendants-Appellants.

No. 11366.

Missouri Court of Appeals, Southern District, en banc.

April 17, 1980.

Donald L. Sanders, Asst. Pros. Atty., Springfield, for plaintiff-respondent.

Carles B. Davis and Alyne Davis, pro se.

GREENE, Judge.

Defendants Carles B. and Alyne Davis, the parents of 13 year old David Neal Davis, were court-convicted of violating the compulsory school attendance law, § 167.031, ¹ and were each sentenced by the trial judge to serve ten days in the county jail and pay a fine of $25, pursuant to the penalty provisions of § 167.061. This appeal followed.

The amended information pro se reads as follows:

"David A. Geisler, Assistant Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office, informs the Court that Charles (sic) B. Davis and Alyne Davis on or about the 13, 14, and 28th days of February, 1978, and the 2, 3, 6, 7, 8, 9, 10, 13, 14, and 17th days of March 1978, in said County of Greene, and the State of Missouri, did then and there wilfully and unlawfully in the said County of Greene, and the State of Missouri, being a parent, having charge, control, and custody of a child between the ages of seven and sixteen years, to-wit: David Neil (sic) Davis, age thirteen (13) years of age, and having received written notice on February 10, 1978, to place and keep said child in regular attendance at some day school within three days from the service of said notice, did during the aforesaid period, without good cause, wilfully and unlawfully refuse and neglect: (1) to cause said child to attend some day school, public, private, parochial, or parish, not less than the entire time said school is in session; or to (2) provide said child at home with regular daily instructions during the usual school hours, with instruction, in the judgment of a Court of competent jurisdiction, at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Missouri."

At trial, the state presented evidence that David did not regularly attend a day school, but did not present evidence that the parents failed to provide their son with home instruction that was substantially equivalent to the instruction given children in the day schools of the locality. At the close of the state's case, defendants moved for a judgment of acquittal on the grounds of failure of proof on the home instruction issue. The motion was overruled. Defendants presented no evidence. The judgment of conviction followed.

The question is whether there was sufficient evidence to sustain the convictions, or, more precisely put, was the state's failure to prove part of the statutory elements of the offense (failure to provide equivalent home instruction) fatal to the state's case? The state, in its brief, "accepts the risk of non-persuasion on the issue of adequacy of home instruction", but argues that the burden of going forward with the evidence on that issue lies with defendants, and that since they failed to meet such burden, the convictions should stand. We do not agree.

The statute in question, § 167.031, reads as follows:

"Every parent, guardian or other person in this state having charge, control or custody of a child between the ages of seven and sixteen years shall cause the child to attend regularly some day school, public, private, parochial or parish, not less than the entire school term of the school which the child attends or shall provide the child at home with regular daily instructions during the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides; except that

(1) A child who, to the satisfaction of the superintendent of schools of the district in which he resides, or if there is no superintendent then the chief school officer, is determined to be mentally or physically incapacitated may be excused from attendance at school for the full time required, or any part thereof; or

(2) A child between fourteen and sixteen years of age may be excused from attendance at school for the full time required, or any part thereof, by the superintendent of schools of the district, or if there is none then by a court of competent jurisdiction, when legal employment has been obtained by the child and found to be desirable, and after the parents or guardian of the child have been advised of the pending action. Amended by Laws 1977, p. 355, § A."

The statutory duty with which parents are charged by § 167.031 is stated in two parallel and co-ordinate clauses separated by the simple conjunction "or" in the same sentence. The parental duty, as expressed and imposed in the alternative, is 1) to cause the child to regularly attend a day school, or 2) provide daily home instruction for the child that shall be substantially equivalent to the instruction given children of equivalent age in the day school in the locality where the child resides. State v. Pilkinton, 310 S.W.2d 304, 308 (Mo.App.1958). In the statute, certain exceptions are listed to this imposed duty, such as the child may be excused from school attendance if it is physically or mentally incapacitated, or, if the child is between 14 and 16 years of age and has obtained desirable legal employment, after parental notification.

While it is true that a defendant has the burden of proving that he falls within an exception to a criminal statute, State v. Zimpher, 552 S.W.2d 345, 349 (Mo.App.1977), the negative averments in the information that the child did not attend a day school and did not receive proper instruction at home do not create an exception, as they are incorporated in, and are an integral part of, the statutory definition of the offense. In such a case, the negative averments are not mere matters of affirmative defense, but are essential elements of the offense, as charged by statute. See State v. Cheney, 305 S.W.2d 892, 894 (Mo.App.1957). The reasoning in Cheney was approved and followed in State v. Pilkinton, supra, at 307-310. Cheney and Pilkinton do not discuss the burden of proof issue, but it is elemental that the state has the burden of proving all essential elements of a criminal offense. State v. Holland, 534 S.W.2d 258, 264 (Mo.App.1975); Charles v. State, 573 S.W.2d 139, 141 (Mo.App.1978). Further, the Due Process Clause of the United States Constitution requires that a defendant be proven guilty beyond a reasonable doubt of every fact necessary to constitute the crime in order to support a conviction. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970).

The facts that the state pleaded here, as mandated by Cheney and Pilkinton, are the same facts that the state must prove beyond a reasonable doubt in order to sustain the convictions. State v. Achter, 514 S.W.2d 825, 829 (Mo.App.1974). Since the allegation that defendants failed to provide their child with proper home instruction was an essential element of the state's case, and since the state failed to prove such element, the convictions cannot stand.

The state argues that it is extremely difficult to prove a negative in a case such as this, as the knowledge of whether the child is receiving equivalent home instruction is, of necessity, lodged within the minds of the child and its custodians. This may be so, but the problem should be addressed to the legislature, and not to the courts. The legislature has the power to make the alternative equivalent home instruction requirement an exception to, rather than a negative statutory element of, the offense. It should not be done by judicial fiat. Statutory law is not a mere inconvenience that judges should try to evade in order to impose their social visions upon the people. Such proposed changes in the law, as are urged here by the state, should be left to the wisdom and judgment of the legislature who are the peoples' representatives in that area.

The judgments of the trial court are reversed and the defendants are ordered discharged.

All concur, except PREWITT, J., dissents and files dissenting opinion.

PREWITT, Judge, dissenting.

In my view the convictions should be affirmed on one of two grounds: (1) that home instruction is an exception to compulsory school attendance under § 167.031; that it is not an essential part of the offense, and the burden of showing it should be on defendants; or (2) that even if home instruction is not an exception, the burden of showing that it was given should be on the parents as the state should not have to prove a negative averment peculiarly within defendants' knowledge.

The emphasis § 167.031 and its companion sections put on school attendance convince me that any other type of education should be considered as an exception. Giving the parent an option by using "or" after the language requiring school attendance, does not change my view. We should not determine the intention of the legislature based on a single word. The intention of the legislature will prevail over the literal sense of the terms used. State v. Shell, 571 S.W.2d 798, 800 (Mo.App.1978).

"The rule of strict construction is not violated by according the language used by the legislature its full meaning in support of the policy and aim of the enactment. The rule does not compel a narrow or forced construction, out of harmony with the manifest purpose and...