State v. Sayre

• Decision Date: 20 November 1928
• Docket Number: 39213
• Citation: 222 N.W. 20,206 Iowa 1334
• Parties: STATE OF IOWA, Appellee, v. MARTIN F. SAYRE, Appellant
• Court: Iowa Supreme Court

222 N.W. 20

206 Iowa 1334

STATE OF IOWA, Appellee, v. MARTIN F. SAYRE, Appellant

No. 39213

Supreme Court of Iowa, Des Moines

November 20, 1928

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

The defendant was indicted and tried on the charge of child desertion. A verdict of guilty was returned by the jury, and an appeal was taken.--Reversed and remanded.

Reversed and remanded.

C. H Miller, for appellant.

John Fletcher, Attorney-general, and Carl Missildine, County Attorney, for appellee.

KINDIG J. STEVENS, C. J., and EVANS, FAVILLE, and WAGNER, JJ concur.

OPINION

KINDIG, J.

Appellant and Abbie Sayre were husband and wife, and lived together in Greene County before moving to Des Moines. Afterwards, Mrs. Sayre went back to Greene County, where she secured a divorce from appellant in 1922, and in that proceeding was awarded the custody of the minor children, hereafter named. Subsequent to this, she returned to Des Moines, and appellant went to Greene County, where he now resides.

It is claimed by the State that the defendant-appellant, between the first day of January, 1925, and October 28, 1927, deserted his said minor children, Carmen and Paul, ages 10 and 12 years, respectively. This crime is within the purview of Section 13230 of the 1927 Code, which reads as follows:

"Every person who shall, without good cause, willfully neglect or refuse to maintain or provide for his wife, she being in a destitute condition, or who shall, without good cause, abandon his or her legitimate or legally adopted child or children under the age of sixteen years, leaving such child or children in a destitute condition, or shall, without good cause, willfully neglect or refuse to provide for such child or children, they being in a destitute condition, shall be deemed guilty of desertion, and, upon conviction, shall be punished by imprisonment in the penitentiary for not more than one year, or by imprisonment in the county jail for not more than six months."

Succeeding the foregoing statutory provision is Section 13235 of the same Code, declaring:

"Proof of the desertion of wife, child, or children in destitute or necessitous circumstances or of neglect to furnish such wife, child, or children necessary and proper food, clothing, or shelter, shall be prima-facie evidence that such desertion or neglect was willful."

I. The State bases its ground for conviction upon testimony given by Mrs. Sayre and Luella, an adult daughter of the divorced parties'. In substance, this evidence is that Luella worked for wages, and paid her mother $ 8.00 every week for board and room, added to which was the salary earned by the latter through employment in the Rollins Hosiery Mills. That aggregate income received by Mrs. Sayre amounted to approximately $ 1,200 each year. Mrs. Sayre, the minor children, and Luella lived in a house, the rent of which was $ 20 per month. Both the mother and adult daughter asserted under oath that there were many times when the children went without proper clothing. Particularly was this true of the boy, who had insufficient footwear, so that his shoes did not protect his bare feet from the ground in the winter. Underclothing was needed, and the family did not have enough fuel with which to warm the house.

During the period of time named in the indictment, the defendant contributed approximately $ 81.50 to the support of his minor children.

"Destitute condition," as used in Section 13230, supra, does not mean "naked," "unhoused," or "actual starvation." State v. Weyant, 149 Iowa 457, 128 N.W. 839; State v. Herring, 200 Iowa 1105, 205 N.W. 861. Apt phraseology contained in State v. Weyant, supra, is:

"To sustain the charge that the wife was left destitute, it was not incumbent upon the State to show that she was left naked or unhoused, or in a condition of actual starvation. To say that a deserted wife is destitute means no more than to say that she is in a condition of great need, a state of extreme poverty, or is without money or property upon which she can rely for her support. Such condition is by no means inconsistent with her possession of food for a day or for a week, or with the fact that some friend has opened his door to give her shelter. A widow or an abandoned wife may indeed have a humble cottage which affords her a place in which to live, but brings in no income, or she may have a cow, which she cannot sell without depriving herself or her babe of needed sustenance, or a few articles of furniture which are necessary to her convenience or comfort, and still be destitute, within the statutory meaning. If it were otherwise, and by the cheap expedient of providing his wife and child with a few dollars' worth of groceries for immediate use, an unworthy father and husband may desert his family and hold himself immune from prosecution, the statute is indeed a very flimsy piece of legislation, and should be repealed at once. A wife is entitled to support at the hands of the husband, and both law and common humanity charge him with the duty of maintaining his own infant child. It does not lie in his mouth to say: 'Here is food to keep you from starvation for the next thirty days, and henceforth I absolve myself from all responsibility for your support. Your father will not allow you to go to the poorhouse. Moreover, your hands are strong, and the kitchens of your neighbors afford a ready field for service in which you can earn a living for yourself and the child of our marriage.' It was to prevent and punish such outrage against humanity and the marriage obligation that the statute was enacted, and its force and effect should not be nullified by any nicety of construction."

II. Nor is the "destitute condition" removed because private or public charity intervenes to save the child from nakedness, the ravages of the physical elements, or starvation; and this is true even if the "private charity" is administered by relatives or near friends. State v. Herring, supra, appropriately says:

"We cannot, however, agree with counsel for appellant that criminal responsibility for the failure to support his child could not be found on the ground that it was not in a destitute condition, merely because his parents, or the mother's parents, did not permit it to be in actual want, 'naked or unhoused, or in a condition of actual starvation.' * * * There was no claim that appellant had made any arrangements with his parents for the support of the child, upon which it, or the mother for it, could rely."

Said issue of "destitute condition" was, therefore, properly submitted to the jury in this case.

III. Appellant's excuse for not having done...