State v. Huhn
| Decision Date | 03 September 1940 |
| Docket Number | 36430 |
| Citation | 142 S.W.2d 1064,346 Mo. 695 |
| Parties | The State v. Welton G. Huhn, Appellant |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court; Hon. R. A. Breuer, Judge.
Reversed.
Robert G. Mayfield, Phil M. Donnelly, J. Andy Zenge, Jr., and John Moberly for appellant.
(1) The court erred in overruling defendant's demurrer offered at the close of all the evidence, the same being lettered D and being in the nature of peremptory instruction, and as more fully appears in paragraph 2 of the defendant's motion for new trial. State v. Starling, 207 S.W. 768; State v. Parr, 246 S.W. 906; State v Decker, 33 S.W.2d 961; 35 C. J., 907, sec. 16; 8 R. C L. 297-298, sec. 320; 77 A. L. R. 317-320. (2) The court erred in giving Instruction 1 on the part of the State, for the reasons that there is a variance between the information and Instruction 1 and submits an issue not supported by the evidence. State v. Smith, 119 Mo. 447; State v Kyle, 177 Mo. 664; State v. Bunyard, 253 Mo. 357; State v. Burgess, 193 S.W. 826; State v. Hardiman, 209 S.W. 881; State v. Futrell, 46 S.W.2d 591; State v. Ballew, 56 S.W.2d 830; 16 C. J., 1042-1045, secs. 2483-2485. (3) The court erred in refusing to give the defendant's Instruction lettered E, which said instruction correctly stated the law applicable to the case at bar in regard to the rights of the parents to the custody of their child, Phillis Faye Huhn. Meredith v. Krauthoff, 177 S.W. 1119; Abel v. Ingram, 24 S.W.2d 1049; Tomlinson v. French Institute of Notre Dame De Sion, 109 S.W.2d 76; 35 C. J., 907, sec. 16; 8 R. C. L. 297-298, sec. 320; 77 A. L. R. 317-320. (4) The court erred in refusing to give defendant's Instruction lettered F for the reason that said Instruction lettered F dealt with a material issue in the case, namely, "intent," and set forth the law as applicable to the evidence to the case in bar. Sec. 4022, R. S. 1929; 114 A. L. R. 870-873; State v. Stallings, 333 S.W.2d 917; State v. Stewart, 44 S.W.2d 103. (5) The court erred in failing to sustain the defendant's demurrers lettered C and D and erred in not directing the jury to find defendant not guilty, for the reason that the information did not charge an offense known to the law under the facts of this case and the evidence clearly showed that the defendant was not guilty of any violation of the law, and the evidence and the law do not support the verdict. Sec. 3734, R. S. 1929; Price v. Evans, 49 Mo. 396; Whitsett v. Ramson, 79 Mo. 260; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 85; State v. Primm, 98 Mo. 373; State v. Gregory, 96 S.W.2d 52.
Roy McKittrick, Attorney General, and J. F. Allebach, Assistant Attorney General for respondent.
(1) The information follows the language of the statute and is sufficient. State v. Dildine, 330 Mo. 756, 51 S.W.2d 2; State v. Jones, 285 P. 501; State v. Dierlamm, 180 So. 139; Wyrick v. Commonwealth, 54 S.W.2d 630; Secs. 3563, 4022, R. S. 1929; State v. Basinger, 271 P. 326; State v. Christiansen, 41 P.2d 443; People v. Knapp, 274 N.Y.S. 90. (2) The form and substance of the verdict is responsive to the issues and is in proper form. Sec. 4022, R. S. 1929; State v. Long, 108 S.W.2d 391. (3) The court did not err in overruling defendant's demurrer at the close of the State's evidence and also the defendant's demurrer at the close of all the evidence. State v. Barr, 78 S.W.2d 105; Sec. 1362, R. S. 1929; State ex rel. Canfield v. Porterfield, 292 S.W. 89; Ex parte Schneider, 292 S.W. 736; Cincinnati Ry. Co. v. McCullom, 109 N.E. 209; Riggins v. Thompson, 71 S.W. 16; State v. Merkle, 189 Mo. 319. (4) The court did not err in giving the State's Instruction 1 and there is no material variance between the allegations of the information and said instruction. Sec. 4022, R. S. 1929; State v. Luna, 257 S.W. 161; State v. Ranson, 340 Mo. 165, 100 S.W.2d 299. (5) It is not necessary in an instruction to define the terms "malicious" and "felonious." State v. Harkins, 100 Mo. 671; State v. Cottengim, 12 S.W.2d 57. (6) The court did not err in refusing to give defendant's Instruction E. (7) The court did not err in refusing to give defendant's Instruction F.
Appellant was convicted of the felony of enticing away a child. The offense arises under Sec. 4022, R. S. 1929, Ann. Stat., p. 2828, which provides punishment upon conviction for any person who shall maliciously, forcibly or fraudulently lead, take or carry away or decoy or entice away any child under the age of twelve years, with the intent to detain or conceal such child from its parent, guardian or other person having the lawful charge of such child. He was fined $ 500, the minimum punishment.
The important facts of this case are undisputed. Appellant is the father and the prosecuting witness is the mother of the child which appellant took from the mother. Appellant and the prosecuting witness, Jayma Brown Huhn, were married on January 25, 1936 at Lebanon, Mo. She was attending school at the time and remained at her home for two months after the marriage while the appellant was at work in the oil fields in Kansas. She then joined him there and lived with him until after she became pregnant when she returned to her home where their child was born in March, 1937. She thereafter remained in Missouri. All the while she was away from her husband he pleaded with her to return to him both by letter and by personal supplication when, from time to time, he would return to Missouri to see her. They remained on friendly terms but it is apparent that he suffered the enmity of her parents. He testified that on one of his visits he discussed with the prosecuting attorney about obtaining custody of his child as a means of bringing his wife back to him. He also talked to the sheriff about it and both advised him that he had a right to the custody of his child.
The evidence in support of the offense charged shows that on October 2, 1937, the appellant and his brother went to the home of his wife's parents where the child had been left with his wife's sister and brother-in-law. He had some conversation with the latter and over their objection, he took his child and carried it to Kansas where he was working. He testified that his purpose in taking the child was to cause his wife to return to him despite her parents' objection.
The facts are undisputed that appellant's wife did not know he was going to take their child and at no time gave her consent or approval to appellant's doing so; that appellant and his wife were not divorced nor was any proceeding for a divorce pending; and that there had been no decree of any court pertaining to the custody of the child. There was no evidence of any pending action to adjudicate the question of its custody.
In order to sustain the conviction the State relies on Sec. 1362, R. S. 1929, Ann. Stat., p. 1579, and insists that by the terms of this section the custody of the child was thereby vested exclusively in the appellant's wife so as to make the criminal statute applicable. The section follows. The part on which reliance is especially based is in italics.
"The father and mother living apart are entitled to an adjudication of the circuit court as to their powers, rights and duties in respect to the custody and control and the services and earnings and management of the property of their unmarried minor children without any preference as between the said father and mother, and neither the father nor the mother has any right paramount to that of the other in respect to the custody and control or the services and earnings or of the management of the property of their said unmarried minor children, pending such adjudication the father or mother who actually has the custody and control of said unmarried minor children shall have the sole right to the custody and control and to the services and earnings and to the management of the property of said unmarried minor children." [Sec. 1362, R. S. 1929, Ann. Stat., p. 1579.]
Unless this section supports the construction so placed upon it the conviction cannot stand. We must therefore first determine its meaning and application.
By the common law the duty being on the father to support and maintain his minor child as its natural guardian he had the correlative right to its custody. This right of custody in the father was paramount and superior even to the right of the mother. The common law would not allow the father irrevocably to divest himself of the custody of his child even by contract with the mother. [In re Scarritt, 76 Mo. 565.]
In so placing the custody of a child in its father the law presumed that such custody, being in harmony with nature was best for the interest not only of the parent and child, but also of society. Later, by the statutes for the adoption and apprenticing of children this presumption could be overcome in the interest of the children's welfare and the right of custody was permitted to be transferred to another. [Weir v. Marley, 99 Mo. 484, 12 S.W. 798.]
By decision and statute the father's paramount right to the custody of his child was forfeited if he was unfit or incompetent to take charge of it or if the welfare of the child itself demanded a different disposition of its custody at the hands of the court. [State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140.]
In 1913 the General Assembly passed an act entitled: "An Act to give married women equal rights with their husbands to the custody and control of the persons of their minor children . ." [Laws 1913, p. 91.] In every respect the act carried out the purpose expressed in the...
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