State v. Rome

• Decision Date: 22 May 1944
• Docket Number: 37514.
• Citation: 205 La. 1071,18 So.2d 625
• Court: Louisiana Supreme Court
• Parties: STATE v. ROME.

18 So.2d 625

205 La. 1071

STATE v. ROME.

No. 37514.

Supreme Court of Louisiana

May 22, 1944

Theodore Cotonio, of New Orleans, for relator.

George McCulloch, Jr., of New Orleans, for respondent.

FOURNET Justice.

Joseph Agney Rome, whose application to the judge of the Criminal District Court for the Parish of Orleans for a writ of mandamus to compel the Hon. Anna Judge Veters Levy, a judge of the Juvenile Court for the Parish of Orleans, to grant him an appeal from an order directing him to pay alimony of $10 a week for the support of his minor daughter was denied applied to and was granted by this court a writ of certiorari directed to the judges of the Criminal District and the Juvenile courts ordering them to transmit the record in this proceeding to this court to the end that its validity might be ascertained and we also issued a rule for them to show cause why the relator should not be granted an appeal from the order complained of.

In response to this rule the respondent judges declared that under the decision of this court in the case of State v. Clark, 143 La 481, 78 So. 742, an order to pay alimony is not a judgment within the meaning and contemplation of Section 96 of Article VII of the Constitution of 1921 from which an appeal will lie.

Counsel for the relator, on the other hand, contends that the decision in the Clark case was handed down in 1918, since which time the legislature of the State of Louisiana adopted its Act No. 126 of 1921, Ex.Sess., providing for proceedings in the Juvenile Court for the Parish of Orleans, as contemplated by Section 96 of Article VII of the Constitution of 1921, and therein stipulated that 'Appeals shall lie on questions of law and of fact to the Criminal District Court from all judgments rendered by the Juvenile Court, but said appeals shall not suspend the judgments of said courts.' (This provision was incorporated into the constitution itself by an amendment of 1938.) Consequently, that the Clark case has no application to the issue involved here.

The defendant in the Clark case was prosecuted under the provisions of Act No. 34 of 1902, which act continued to be the law until it was specifically repealed in Act No. 43 of 1942 adopting the Criminal Code. The act of 1902 made it a misdemeanor to wilfully neglect to provide for a wife or minor child in necessitous circumstances but, as was pointed out in the case of State v. Walter, 170 La. 677, 129 So. 127, 'The statute provides also that the judge may, instead of imposing a penalty, or in addition thereto, order the defendant to pay his wife a certain sum weekly for the period of one year, and may release him from custody on probation, or on his own recognizance, or under bond. The statute provides further that, if the defendant has been ordered to pay a stipulated sum weekly for a year, the judge may, at any time during the year, on information and proof that the defendant 'has violated the terms of such order,' proceed to try him under the original indictment if he has not been tried, or to sentence him under the original conviction if he has been found guilty, as the case may be.' But the court specifically called attention to the fact that such an order was unenforceable because the authority of the Juvenile Court was limited by the act, in the event the defendant at any time during the year failed to comply with the terms of the order, to trying the defendant under the original indictment if he had not been tried, or by sentencing him under the original conviction, if he had been tried and found guilty, the judge being given no authority to find him guilty of contempt of court or to punish him for neglecting to comply with the order. See, also, State v. Fried, 152 La. 710, 715, 94 So. 327; and State v. Ebeier, 154 La. 347, 97 So. 473.

Under the present code (Criminal) when a parent is found guilty of intentionally failing to support a minor child, he shall be fined not more than $500 or imprisoned for not more than a year, or both (Article 74), but under Article 75 the court is...