State v. Sweet

• Decision Date: 13 December 1929
• Docket Number: No. 27613.,27613.
• Citation: 179 Minn. 32,228 N.W. 337
• Parties: STATE v. SWEET.
• Court: Minnesota Supreme Court

228 N.W. 337

179 Minn. 32

STATE v. SWEET.

No. 27613.

Supreme Court of Minnesota.

December 13, 1929.

Appeal from District Court, Crow Wing County; Graham M. Torrance, Judge.

Charles Clifford Sweet was convicted of abandoning and failing to care for his minor child, and he appeals. Reversed for new trial.

Elmer A. Kling, of Little Falls, for appellant.

G. A. Youngquist, Atty. Gen., and A. J. Sullivan, Co. Atty., of Brainerd, for the State.

HOLT, J.

Defendant appeals from the order denying a new trial after a conviction under an information charging him with abandonment of and failure to care for his minor child under section 10135, Gen. St. 1923.

The facts necessary to state are these: The complaining witness and defendant were married in June, 1923. A daughter was born to them in May, 1924. In March, 1925, the wife obtained a divorce from defendant, and by the decree the care and custody of the child was awarded to its mother, but defendant was ordered to pay $50 per month for the child's support. In May, 1925, defendant was convicted under said section 10135 for deserting and abandoning this child and sentenced to the reformatory. He was paroled the following year. During his stay at the reformatory and also while on parole, he contributed about $200 to the support of the child. After the parole terminated nothing has been contributed, unless it be the sum of $5 sent in a letter to the mother of the child Christmas 1927.

It is claimed that the former conviction precludes another prosecution for a like offense. We think not. Convictions for violations of statutes like sections 10135 and 10136, which cover so-called continuing offenses, do not bar prosecution for like offenses thereafter committed. State v. Clark, 148 Minn. 389, 182 N. W. 452; State v. Wood, 168 Minn. 34, 209 N. W. 529. The duty of defendant to support the child was a continuing obligation as well under the divorce decree as in the absence of such decree. Jacobs v. Jacobs, 136 Minn. 190, 161 N. W. 525, L. R. A. 1917D, 971; Jackson v. Jackson, 168 Minn. 196, 209 N. W. 901.

Defendant contended at the trial that since, by the divorce decree, he had been deprived of the custody of the child, he could not well be convicted of deserting or abandoning it. It would no doubt be true that had he without consent of the mother taken the child into his keeping, he would have made himself liable to punishment as for contempt. Under this situation it appeals to us that the willful failure to give the child the support ordered by the decree would be a violation of section 10136, Gen. St. 1923, rather than of section 10135, and appropriate instructions permitting the jury to find defendant guilty accordingly were asked and refused. Error is assigned upon such refusal. The substance of these two sections of our statutes originated in the Penal Code of 1885, as sections 246 and 247 thereof. In subsequent compilations they have occupied the same relative positions. Section 10136 appears to aim at an offense similar in kind, but of a lesser degree than the preceding section. Where, as here, the ingredient of the violation of section 10135 is an intent to "wholly abandon" the child, it is giving that term a broader meaning than permissible in criminal statutes to hold that one who has no right to take a child into his custody or care can wholly abandon the same. The Michigan statute making desertion or abandonment of wife or child a crime is not quite the same as ours, nor is there any provision similar to our section 10136, but on the proposition that a father who by a decree of divorce has been deprived of the custody of a minor child cannot be convicted of deserting or abandoning the same, the decision of People v. Dunston, 173 Mich. 368, 138 N. W. 1047, 1049, 42 L. R. A. (N. S.) 1065, is quite convincing. The court said: "And conceding that at the time charged, and to which the testimony was directed, respondent neglected or refused to provide necessary and proper shelter, food, care, and clothing for his children, there is no proof that he at that time separated himself from, deserted, or abandoned them within the meaning of the statute; but on the contrary, he was apart from them, and his legal status was such that it was impossible for him to do so." The case of State v. Lewis, 157 Minn. 250, 195 N. W. 901, is cited by the state; but it is to be noted that although Lewis had procured a divorce, the decree was silent as to the custody of the children, so his status to the children was exactly as if there had been no divorce, and their care and custody remained in him.

Although the information was under section 10135, Gen. St. 1923, it stated facts showing a violation of the section following, and in our opinion he could be convicted only under that section, since the evidence was undisputed that during the time involved the custody of the child was exclusively in the mother from whom he was divorced; hence, within the meaning of section 10135, he could not desert or wholly abandon one whom he had no right to have the care and keeping of. There was error in refusing the requested instruction.

The conviction is set aside, the order is reversed, and a new trial is hereby granted.

WILSON, C. J. (dissenting).

The distinction between Gen. St. 1923, § 10135, and section 10136 is that the former rests on an "intent to wholly abandon" the child, while the latter rests upon a willful failure to furnish help. The father has a natural obligation toward his child. It is a common-law duty. This statute answers as a weapon to be used where there is a subnormal sense of parental duty. It seems to me that the majority opinion is a cold and illogical doctrine which wholly ignores the welfare of the child and enables the father to take advantage of his own wrong.

Because of the father's misconduct the wife gets a divorce, and for the same reason the custody of the child is given to the mother. This does not destroy the father's common-law duty. In Spencer v. Spencer, 97 Minn. 56, 105 N. W. 483, 484, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, 7 Ann. Cas. 901, this court said: "Upon principle, and the weight of judicial authority, we hold that the legal obligation of a father for the support of his minor children is not...