State v. Miller

• Decision Date: 10 December 1921
• Docket Number: 23,664
• Citation: 111 Kan. 231,206 P. 744
• Parties: THE STATE OF KANSAS, Appellee, v. MELVIN D. MILLER, Appellant
• Court: Kansas Supreme Court

206 P. 744

111 Kan. 231

THE STATE OF KANSAS, Appellee, v. MELVIN D. MILLER, Appellant

No. 23,664

Supreme Court of Kansas

December 10, 1921

Decided January, 1922

Appeal from Bourbon district court; EDWARD C. GATES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL LAW -- Conviction of Failure to Support Minor Child -- Venue -- Amendment of Decree. In 1915, the defendant's wife was granted a divorce in Crawford county and was awarded $ 11,000 worth of property for the support of herself and infant daughter. Thereafter she lived at various places, and while in Oklahoma sued the defendant for $ 1,500 for maintenance of the child who from birth has been afflicted with a spinal difficulty necessitating much expense for treatment. She afterwards took up her residence at Fort Scott, Bourbon county, and there caused the arrest of her former husband for failure to support the child, under the desertion act chapter 163 of the Laws of 1911. The information alleged and the evidence showed the child to be in necessitous circumstances. Held, that the venue was properly laid in Bourbon county although the defendant still resided in Crawford county; and held, also, that the right of the wife to cause the decree to be amended touching the support of the child is no bar to a prosecution by the state for failure to support.

Archie D. Neale, of Chetopa, for the appellant.

Richard J. Hopkins, attorney-general, and Harry Warren, county attorney, for the appellee.

OPINION

WEST, J.:

The defendant appeals from a conviction of failure to support his minor child. In 1915, he and the complaining witness were husband and wife, living at Pittsburg, when she was divorced from him and given the care, custody and control of their minor child, an attorney's fee of $ 400, and certain real estate was set apart to her and for her sole use, support, alimony and maintenance. Afterwards the decree was amended to show that the alimony allowed the plaintiff was for her permanent alimony and for the support and maintenance of the child. The wife testified that the property thus allowed her was worth about $ 11,000. The defendant in the divorce action continued to live in Pittsburg, but the plaintiff lived elsewhere, at various places, and in January, 1921, located in Bourbon county where she was boarding with her child, a daughter about six years old, suffering from some sort of spinal difficulty with which she had been afflicted from birth. While living in Oklahoma, the mother brought an action against the husband for $ 1,500 for maintenance of the child, but testified that she did not know what had become of that suit. The information charged failure to support the child from January, 1921, she being in destitute and necessitous circumstances. The court charged, among other things, that the jury must be satisfied beyond a reasonable doubt that the defendant did unlawfully, feloniously and willfully and without lawful excuse neglect and refuse to provide for the child then in destitute and necessitous circumstances, and that the word "necessitous" means needing the necessaries of life, and that his liability would not be changed by the fact, if it were a fact, that she was furnished the necessities of life by her mother or other persons. It was further charged that it was not material which of the parties was at fault in the divorce action, and that if they found that the property awarded had been exhausted and that the child was now destitute, the fact of having contributed such property would be no defense in this action. The defendant was convicted and sentenced to pay the complaining witness $ 100 on the 14th day of May, 1912, and each month thereafter for two years, and to execute a bond in the sum of $ 3,500 for the fulfillment of such order. The specifications of error are the denial of a motion for a new trial, refusal to instruct a verdict of not guilty, and giving and refusing certain other instructions.

The defendant's chief contentions are that the venue was improperly laid and that the wife having been divorced on account of the fault and aggression of the husband, and having been given the custody of the child, and the husband having paid her $ 11,000 alimony for the support of both, he cannot be prosecuted criminally under the desertion act, but could at most be subjected to a change in the decree of the court awarding the alimony.

Some complaint is made touching the alleged necessitous condition of the child and the help of other persons, but in these respects the court followed the decisions already made under the desertion act, and committed no error in respect thereto. The question of venue is well covered by the decisions and citations in The State v. Gillmore, 88 Kan. 835, 129 P. 1123; In re Fowles, 89 Kan. 430, 131 P. 598; and The State v. Wellman, 102 Kan. 503, 170 P. 1052, and reference thereto makes further discussion needless.

That the district court of Crawford county might on proper application and showing further amend its decree is true. ( Walrath v. Walrath, 27 Kan. 395, 399, 400; Miles v. Miles, 65 Kan. 676, 70, 70 P. 631; Rogers v. Rogers, 93 Kan. 114, 143 P. 410; In re Petitt, 84 Kan. 637, 114 P. 1071; Greenwood v. Greenwood, 85 Kan. 303, 116 P. 828; Riggs v. Riggs, 91 Kan. 593, 138 P. 628; Purdy v. Ernst, 93 Kan. 157, 143 P. 429; Combs v. Combs, 99 Kan. 626, 628, 162 P. 273.)

Counsel, who naturally feels that an injustice has been done his client, cites Burritt v. Burritt, 29 Barb. 124; Brown v. Smith, 19 R.I. 319, 33 A. 466; Hall v. Green, 87 Me. 122, 32 A. 796, and Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483, on the proposition that when the decree of divorce fixes the award for the support of the wife and children, the father is released from all liability for the support of the child unless by change of the decree. In the Burritt case the last paragraph of the syllabus is:

"To make the father thus liable in a case where a divorce has been decreed, and the care and custody of the child are awarded to the mother, and alimony is given to the wife, there must be special circumstances averred in the complaint, or appearing in the evidence, from which the obligation must arise, or may be reasonably inferred."

In the Hall case it was said that--

"When a divorce is granted to a wife and as a consequence of it she has committed to her the care and custody of her minor child, it follows that the father becomes entirely absolved from the common-law obligation which previously rested upon him to support such child; and that the only obligation of the kind afterwards resting upon him consists in such terms and conditions in respect to alimony and allowances as the court may impose on him in the decree of divorce or in some subsequent decree in the same proceeding." (p. 123.)

It was held, therefore, that a common-law action in assumpsit by the wife would not lie against the husband. To the same effect is Brown v. Smith, supra. In Spencer v. Spencer, the legal obligation of the father was held to be not impaired by a decree of divorce at the suit of the wife which gave her the custody of the children, but was silent as to their support, and it was held that--

"If under such circumstances he refuses or neglects to support them, she may recover from him in an original action a reasonable sum for necessaries furnished by her for their support after such decree." (Syl.)

So it will readily be observed that in each of these instances a civil action by the wife was involved, not one by the state to which she was not a party. True, it was held, as suggested by counsel, in Harris v. Harris, 5 Kan. 46, that an action by the wife, who had been awarded the custody of the three minor children, would not lie to recover against the former husband for the support of a fourth child born two days after the decree was rendered; that her only relief was to open up the decree. That was in 1869. In 1914, this decision was thus interpreted:

"It did not decide that a divorced wife to whom the custody of children has been awarded may not recover from her former husband for advancements made toward the maintenance of children subsequent to the divorce. On the other hand, the right of the mother and the obligation of the father were expressly recognized, the language being, 'do such full justice as the case requires, having reference to advancements already made.' Neither was it decided that the remedy lay with the divorce court alone. . . . The court did not have in mind the case of a father who absconds from the jurisdiction of the divorce court and so precludes the burdened mother from resorting to it for relief. . . . But since the obligation does exist, and exists in favor of the mother, the law is not so impotent as to leave her remediless." (Riggs v. Riggs, 91 Kan. 593, 597, 598, 138 P. 628.)

Still more pointedly may it be said that in none of the foregoing decisions did the court have in mind a criminal prosecution.

The desertion act proceeds upon the theory that the state may compel a father to support his minor child whenever in destitute or...