State v. Winterbauer

• Decision Date: 12 December 1927
• Docket Number: No. 28290.,28290.
• Citation: 300 S.W. 1071
• Parties: STATE v. WINTERBAUER.
• Court: Missouri Supreme Court

300 S.W. 1071

STATE v. WINTERBAUER.

No. 28290.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Case certified from Springfield Court of Appeals.

Leroy Winterbauer was convicted in the circuit court of Oregon county of abandoning his infant child. This conviction was reversed by the Springfield Court of Appeals (296 S. W. 219), defendant discharged, and cause certified to the Supreme Court. Reversed, and defendant discharged.

Freeman L. Martin, of St. Louis, for appellant.

North T. Gentry, Atty. Gen., and Smith B. Atwood, Asst. Atty. Gen., for the State.

HIGBEE, C.

An amended information, filed in the circuit court of Oregon county on December 11, 1925, charged that at and in said county, on or about the ____ day of December, 1924, the defendant, being then and there the father of a child born in lawful wedlock, under the age of 15 years, to wit, Vera La Verne Winterbauer, aged two months, unlawfully, willfully, and without good cause, did abandon said child and from the ____ day of December, 1924, to the ____ of November, 1925, and thence hitherto, did then and there unlawfully, willfully, and without good cause, fail, neglect, and refuse to maintain and provide for her, the said Vera La Verne Winterbauer, his said child as aforesaid, against the peace and dignity of the state.

On a trial the defendant was found guilty and his punishment assessed by the jury at a fine of $100. He appealed to the Springfield Court of Appeals where the judgment was reversed and the defendant discharged. 296 S. W. 219. That court deeming its opinion to be in conflict with the conclusion reached by the St. Louis Court of Appeals in State v. Beims, 212 Mo. App. 221, 253 S. W. 420, the cause was certified to this court for final disposition as provided by section 6 of the Amendment of 1884 to the Constitution.

Section 3274, p. 281, Laws 1921, provides:

"* * * Or if many man or woman shall, without good cause, abandon or desert or shall, without good cause, fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child or children born in or out of wedlock, under the age of sixteen years, * * * he or she shall, upon conviction, be punished by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment"

The evidence for the state is that May Brawley, the mother of the child, horn November 9, 1924, was married to the defendant in East St. Louis, Illinois, May 1, 1924. Their first act of sexual intercourse was on February 28, 1924. After their marriage the defendant and his wife lived together only a few days. The defendant, failing to provide his wife a home, sent her to her father, George Brawley, in Oregon county, where she has continued to live since the spring of 1924. The defendant, who lived in St. Louis, Mo., was employed there as an automobile mechanic and was able to provide food and clothing for his child, but contributed nothing to her support or that of his wife. George Brawley, however, gave them a home and provided for them. The child has never lacked for either food or clothing. On March 23, 1925, the defendant wrote his wife from St. Louis:

"I am writing this to answer your many letters. I am divorced from you and want nothing more to do with you and stop writing me, as this is finalely."

1. State v. Thornton, 232 Mo. 298, 134 S. W. 519, 32 L. R. A. (N. S.) 841, was a prosecution based on section 4492, R. S. 1909, for the failure of the defendant Thornton to provide his infant children with necessary food, clothing, and lodging. The statute referred to, so far as applicable, reads:

"If any mother of any infant child, under the age of sixteen years, or any father of any such infant child, born in or legitimatized by lawful wedlock * * * shall, without lawful excuse, refuse or neglect to provide for such infant * * * necessary food, clothing or lodging, * * * the person so offending shall, upon conviction, be punished," etc.

The provision of this section as to neglect or refusal of a parent to furnish necessary food, clothing, or lodging for his or her infant child is substantially the same as that in section 3274, p. 281, Laws 1921. The evidence for the state showed the children were amply supplied with food, clothing, and lodging by the wife's father. On page 305 (134 S. W. 520), the court said:

"The statute penalizes the refusal of the father to supply necessary food, etc. Under the law pertaining to necessaries, a necessary article is one which the party actually needs. It is not enough to show that the article is per se classed as necessary, such as food and clothing. It must also be actually needed at the time."

And on page 306 (134 S. W. 521):

"The Legislature did not enact this law for the purpose of punishing parents for failure to do their duty as such. Such a purpose would smack to strongly of paternal government. The only legitimate object of the statute is to secure to infants, who are in future to become citizens of the state, proper care; such care as is necessary to protect their lives and health. In other words, to prevent destitution.

"It follows from the foregoing that if infant children are receiving necessary food, clothing and lodging from any source, there is no occasion for the state to interfere by penal law or otherwise."

The Springfield Court of Appeals in its opinion adopted the construction given the statute in the Thornton Case, holding that as it appeared the child was provided with necessary food,...