State v. Leed, 30236

• Decision Date: 14 November 1962
• Docket Number: No. 30236,30236
• Citation: 186 N.E.2d 5,243 Ind. 402
• Parties: STATE of Indiana, Appellant, v. Roger C. LEED, Appellee.
• Court: Indiana Supreme Court

Page 5

186 N.E.2d 5

243 Ind. 402

STATE of Indiana, Appellant, v. Roger C. LEED, Appellee.

No. 30236.

Supreme Court of Indiana.

Nov. 14, 1962.

Edwin K. Steers, Atty. Gen., Donald L. Adams, Deputy Atty. Gen., Indianapolis, for appellant.

Albert B. Chipman, Chipman & Chipman, Plymouth, for appellee.

ARTERBURN, Chief Justice.

This is an appeal by the State of Indiana as the result of the sustaining of a motion to quash an amended affidavit charging the appellee with the crime of non-support of his children. See: State v. Leed, Ind., 183 N.E.2d 607, decided June 25, 1962, in which a motion to dismiss was overruled.

Appellee's memo to his motion to quash in part states:

'The amended affidavit fails to charge the defendant with living in Indiana on December 27, 1960.

* * *

* * *

'The statute refers to the father and not the children 'living in this state."

The question presented here is whether or not the father, who is charged with the non-support of his children, must be, under the statute, 'living in this state' at the time of the alleged commission of the crime, or does that phrase refer to the location of the children? The statute reads as follows:

'Parents--Support of children--Penalty--Suspension of sentence.--The father, or when charged by law with the maintenance thereof, the mother of a child or children, under fourteen years of age, living in this state who being able either by reason of having means or by personal services, labor or earnings, shall wilfully neglect or refuse to provide such child or children with necessary and proper home, care, food and clothing shall be deemed guilty of a felony, and upon conviction be punished by imprisonment in the state prison or reformatory for not more than seven years nor less than one year: Provided, That upon conviction the judge may suspend the sentence and, in the order suspending the sentence, may require the defendant to pay, weekly or otherwise, as the court may determine, to the clerk of the court, for the support of the children, such sum as the court may deem necessary. Provided, further, That, upon the failure of such parent to comply with said order, he or she may be arrested by the sheriff or other officer and a warrant issued on the sworn complaint of a responsible person, or the praecipe of the prosecuting attorney, and brought before the court for sentence, whereupon the court shall pass sentence, or further suspend sentence, as may be just and proper.'

Acts 1913, ch. 358, § 2, p. 956; 1915, ch. 179, § 1, p. 654, being Burns' § 10-1402, 1956 Repl.

The charge follows substantially the wording of the statute as follows:

'AMENDED AFFIDAVIT FOR FAILURE TO PROVIDE FOR CHILDREN

'Loretta Mae Leed, being first duly sworn upon her oath says: That on the 27th day of December, 1960, at and within the County of Marshall and State of Indiana, one Roger C. Leed was then and there the father of the following children, to-wit:

'Katherine Lucille Leed, a girl seven (7) years of age 'Stephen Roger Leed, a boy six (6) years of age,

'David Charles Leed, a boy five (5) years of age,

'Elizabeth Ann Leed, a girl three (3) years of age, and

'Peggy Sue Leed, a girl one (1) year of age

'all of said children under the age of fourteen (14) years living in said County and State, and the said Roger C. Leed then and there being in said County and State and being able by reason of having means and by personal services, labor and earnings so to do, did then and there wilfully, unlawfully and feloniously neglect and refuse to provide his said children, Katherine Lucille Leed, Stephen Roger Leed, David Charles Leed, Elizabeth Ann Leed, and Peggy Sue Leed, with necessary and proper home, care, food and clothing, Contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.

'Loretta Mae Leed

'Loretta Mae Leed

'Approved by me, this 29th day of March, 1961.

'Donald K. Travis

'Donald K. Travis

'Prosecuting Attorney 72nd

'Judicial Circuit of Indiana

'My Commission expires: December 31, 1962 (LS)

'Subscribed and sworn to before me this 29th day of March, 1961.

'Roy Sheneman,

'(LS) 'Roy Sheneman, Judge of The Marshall Circuit Court.'

Courts are divided as to whether, under statutes containing no specific provision as to residence of the father, jurisdiction of a criminal offense of non-support of the children is defeated by the fact that the father has moved to another state or county during the period of time for which he is charged with non-support. See: Annotations, 44 A.L.R.2d 899.

We are not concerned here with the policy of the law and the argument made that the denial of jurisdiction in such cases encourages the evasion of a parental duty by a delinquent father. The Indiana statute does fix the jurisdiction by the phrase 'living in this state.' The question here is, to which antecedent does the phrase refer? Normally, in a sentence the grammatical constructions in such cases create a reference to the nearest antecedent. In this case it is the children and not the father to whom the reference is made. This construction has been followed in this state. The statute does not fix the jurisdiction by reference to the father's location or residence, but rather that of the children.

In Groenendyk v. State (1926), 197 Ind. 697, 151 N.E. 730, this court reversed a trial court which refused to quash an indictment for the reason that the charge omitted the words of the statute 'living in this state' and hence did not allege that the child was 'living in this state.' This court said:

'It is plain that the words of the statute 'living in this state' do not refer to the father of the child, but refer to the child. The fact that the child must live in this state becomes a material element of the offense. The offense is not well pleaded, unless it is stated as a fact that the child is living in this state, from which it follows that the indictment is subject to the defect alleged in the motion to quash.'

In State v. Yocum (1914), 182 Ind. 478, 106 N.E. 705, the mother, following a decree of divorce in which she was granted the custody of the children, moved to another county where she could better provide for them and herself, while the father remained in the county of their original home. The appellant was charged by affidavit for non-support in the county to which the children and their mother had moved. This court held that jurisdiction with reference to the enforcement of the support order made in the divorce action was still with the...