State v. Langford

• Citation: 176 P. 197,90 Or. 251
• Parties: STATE v. LANGFORD.
• Decision Date: 03 December 1918
• Court: Oregon Supreme Court

176 P. 197

90 Or. 251

STATE v. LANGFORD.

Supreme Court of Oregon

December 3, 1918

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

George H. Langford was convicted of the crime of failure to support his minor child, and he appeals. Reversed and remanded for new trial.

George H. Langford was convicted of the crime of failure to support his minor child, and he appealed. The indictment is dated June 19, 1917; it was filed June 20, 1917; and it charges that on June 1, 1917, in Clatsop county, Or., the defendant did "without just or sufficient cause, fail, refuse, and neglect to support his said minor child, Wendell Langford."

The child's parents were married on January 28, 1902; Wendell Langford, the child, was born on June 2, 1905; and the father and mother were divorced on December 6, 1911. The mother married J. T. Jeffries in 1915; and the father married Mrs June Bosdorfer on November 10, 1916. The trial occurred in September, 1917.

The record presented to us does not contain a copy of the decree of divorce or any satisfactory evidence of the exact terms of the decree so far as it relates to alimony for the divorced wife or maintenance for the child. The testimony supports the statement, however, that the decree provides for alimony, and that the defendant was adjudged to be the party in fault; but there is no suggestion as to the amount or as to the time when the alimony is payable. It can be inferred from the evidence that the decree awards the custody of the child to the mother, for the boy lives with his mother, and it is possible to infer also that the decree requires the father to pay some amount of money for the maintenance of the child but the record does not disclose how much money is to be paid, or whether the amount to be paid is payable in gross or in installments.

While the record does not name the place where the decree of divorce was granted, it is probable that the decree was rendered in Astoria, Clatsop county. The mother resided in Astoria continuously from the date of the divorce until the time of the trial, except for a period of 13 months when she was employed as a stenographer in Hillsboro, Or. The record does not definitely inform us as to the whereabouts of the defendant, except to tell us that for a year and a half prior to the date of the trial he had been living in Portland, Or where he was conducting a barber shop. A reading of the transcript of testimony, however, may leave the impression that, although the defendant left Astoria at some time in the early part of 1912, he continued to reside in Oregon.

Upon obtaining a decree, the mother found employment as a clerk in a store during the daytime, and she attended business college after working hours. Subsequently she quit clerking in the store, and, with the aid of funds loaned to her by a sister the mother of the child gave her entire time to her studies and was able to graduate from the business college. After graduating, she secured employment and earned as much as $60 per month during part of the time. The record does not satisfactorily show whether the mother worked as a stenographer continuously after her marriage to J. T Jeffries, but it does appear that she had employment during a portion of the time after 1915, and she testified at the trial that she had made arrangements for a place where she expected to work as a public stenographer. The mother furnished all the money used for the support of the child after February, 1912; and the defendant has not contributed any money since that date. The mother's present husband, J. T. Jeffries, was at the time of the trial serving as a captain in the United States Army; but after paying for his own necessary expenses it is probable that only a small portion of his salary remained. The uncontradicted evidence is that the child is not old enough to work.

The defendant is a barber. He conducts a shop in Portland. He testified that he paid a rental of $8.50 per month for the shop and that he earned about $14 per week. He stated that he was in debt, and that his earnings were not sufficient to maintain himself and his wife, and that "it has taken all the money" he "can make to support" himself and wife, and "that is the reason why" he could not contribute anything to his child. The present wife testified that the defendant had never purchased any clothes for her since their marriage in 1916, and that he had not bought any for himself except a pair of trousers; and she also stated that she had purchased a hat for him with money which she had earned by making a dress for some other person.

The defendant claimed that his arm had been dislocated about three years prior to the trial; that his hands were inclined to cramp, making him "heavy-handed"; and that he had been suffering with lumbago.

At the time of, or soon after, the divorce, a city lot was deeded to the mother of the child, and the defendant was given credit for $100 on account of alimony. In the latter part of 1911, or the early part of 1912, the defendant paid to the boy's mother cash amounting to at least $15, and probably aggregating $20; but he has not paid any sum whatever to the mother, for her or for the boy, since February, 1912.

The defendant claims that in May, 1912, he asked the boy's mother where Wendell was, and that she told him that she had sent the boy to South America and that the defendant could not see the boy any more. The defendant says that he neither knew where the boy was nor saw him from about May, 1912, until July, 1917, although he admitted that he knew that the boy's mother had married J. T. Jeffries and was living in Astoria. The undisputed evidence is that the boy had been attending the public schools in Astoria for at least two years, and it is a fair inference to say that the evidence indicates that the child had been attending the schools for three years preceding the date of the trial; and, moreover, the evidence justifies the inference that Wendell had been in Astoria most of the time, if not all the time, after his parents were divorced.

The boy's mother stated that, while she had asked the defendant to assist in supporting the boy prior to "the last three years," she had not made any demand within the last three years upon the defendant to support the child, because she had left the matter with her attorney. F. M. De Neffe, an attorney, testified that--

He called upon the defendant on May 12, 1917, in behalf of Mrs. Jeffries "to see whether he would not pay something on what the decree required that he should pay for the minor child, and I called at his barber shop on Lombard street, and, I think, Peninsula Station; and I talked with him and told him what I was there for, to see whether he would not pay something on the decree, on the judgment, and he said that he would not pay the judgment; and I asked him whether or not he would not pay part of it, if he could not pay it all, and he said, no, he would not pay anything; and I told him that Mrs. Jeffries said that the child needed different things and she would like to get what she could anyway, and I asked him whether he could not pay $25 or $5. He said, no, he would not pay anything; and I asked him whether or not he would not pay something this month, or a small amount each month, $5 if he could not pay more, and he said no, he would not pay anything. That is about all that was said."

Richard Talboy, of Portland (Norblad & Hesse, of Astoria, on the briefs), for appellant.

E. C. Judd, Dist. Atty., of Astoria (G. C. & A. C. Fulton, of Astoria, on the briefs), for the State.

HARRIS, J. (after stating the facts as above).

In 1907, the Legislature enacted a statute entitled an act "to punish a person for failing or refusing without just or sufficient cause, to support his wife or children, or to provide for their support." Chapter 78, Laws 1907. Section 1, afterwards carried into Lord's Oregon Laws as section 2166, reads thus:

"Any man who, without just or sufficient cause, shall fail to support his wife or child shall be deemed guilty of a misdemeanor, and shall be punished therefor by imprisonment in the county jail for not less than thirty days, nor more than one year."

In 1913, the Legislature repealed chapter 78, Laws 1907, and enacted a new statute, section 1 of which made it a crime punishable by imprisonment in the penitentiary or in the county jail for any person to fail or neglect, without just or sufficient cause, to support his wife or children. Chapter 244, Laws 1913.

In 1915, section 1 of the act of 1913 was amended to read as follows:

"Any person who, without just or sufficient cause, shall fail or neglect to support his wife or children, shall be deemed guilty of a felony and shall be punished therefor by confinement in the state prison for not less than one year nor more than three years, or by imprisonment in the county jail for not less than 30 days nor more than one year; provided, however, that when a decree of divorce between husband and wife has been heretofore or shall be hereafter granted by any competent court, and the custody of the child or children, the issue of said marriage relations, has been or may be given by the court to either party to the suit, then the provisions of this act shall not apply as to the other party to said suit." Chapter 249, Laws 1915.

In 1917, the Legislature amended section 1 of the act of 1915 so as to make it read thus:

"Any person who, without just or sufficient cause, shall fail or neglect to support his wife, or female children under the age of eighteen years, or male children under the age of sixteen years, shall be deemed guilty of a felony and shall be punished therefor by confinement in the state prison for not more than one year, or by

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