Evening journal., 1917-03-12
CITY court HAS
power IN Cases
OF SUPPORT


which could be turned over 10 an IN
ferior court such as the Munlcipal
Court was. and was not Of the same
class Of offenses as those named IN
the Constitution and the Constitution
did not authorize the Legislature to
confer the jurisdiction OF non-support
cases on the Municipal Court
Municipal Courts Jurisdiction.
But the Supreme Court held other-
wise. and decided that the Legislature
was by the Constitutional provision
above mentioned authorized to confer
on the Municipal Court jurisdiction OF
cases OF violation Of the non-support
act
apneal from the Municipal Court TO tho
Court of General Sessions the attorney
general files an information which may
vnrv from that in the court be4eAF, and
that tho case is heard dc novo. The
tonrt also held that the variation be-
tween the information in the appellate
court from that in the court below was
not of such importance as to navalidate
the information in the Court OF General
Sessions.
Statute Is Construed
The court also construed the words OF
the statute, and held as follows
a child of three years old having no
nropertv is in destitute and necessitous
circumstances when the father can but
does not. and the mother cannot, pro
vide for tho support Of tho child, though
both mother and child be in fact sup.
ported bv the childs maternal grand
father. who was under no legal obhgn-
tion TO furnish such support. We
cannot consent 20 an Interpretation OF
the act which would relieve a parent Of
all liability under the act to support his
infnnt child until IL was actually starry
ing naked or homeless. The parents
liability exists under il when. so far as
ANYTHING he has done, the child would
have starved. become naked or homeless,
for in such case tho child is IN desutute
and necossituous circumstances"
There was some evidence as to the
relations between the father and
mother Of the child and as TO the
cause of their separation. But the
court held that such evidence was inn
material. and said;
For the purposes OF this case II
does not matter whether the father OF
the child used personal violence to-
wards his wife or not. or whether she
was afraid TO live with him or not.
or whether he really wanted her TO
live with him. II was his duty 10 sup
mort his child II he was financially able
10 do so, provided the child was in
destitute and necessitous circum-
stances. even though the wife without
sufficient excuse refused to live with
him. We do not say that he could
have been compelled 20 support ms
wife In such a case. but surely little
child could not be held responsible Tor
the acts Of the mother
And. again. the court said:
"s the separation ot the
father and mother. no matter through
which ones fault. is not a lawful eX-
cuse for the fathers refusal 10 sup
mort a young child in destitute and
necessitous circumstances within the
-ineaning Of the statute.
"But we entirely agree with the
court below in holding that the mere
refusal OF a wife TO live with her hus-
band. even though she had no Just
cause 10 leave him. does not furnish
him a lawful excuse to refuse TO sup
port a child she takes with her. III
her conduct after leaving is so ia
grant and wicked as TO make her an
unfit person to keep and raise the
child. the father may in a proper pro-
ceeding recover its custody II he be
a proper person TO have It. Such, how
ever. is not the present case.
ut should be born in mind that the
question in this case is not whether
the wife had a lawful excuse for leaN-
ing her husband, but whether the lat
ter had a lawful excuse for refusing
TO support the child. The two Ques-
tions are wholly dissimilar, and the
former is. in our opinion. entirely i'm
material IN this case. We think some
confusion has been caused in the dis
cussion OF the case by treating both
questions as material and in effect
similar
"But il is also true that If the
mother OF an infant of tender years
refuses 10 live with her husband, the
father of the child, because she has
suffered personal violence at the
hands OF her husband and fears on
that account TO go TO live WITH MN
her refusal under such circumstances
IS not a lawful exvuse for the failure
of the father to support the child.
To Reframe the Judgment
The Court of General Sessions aiteI
hearing the witnesses and hnding
Donaghy guilty imposed a sentence
different from that OF the Municipal
Court. and required him to pay a
weekly sum for the support OF the
child beginning at the time he was
in the Municipal Court. But
The Supreme Court held that though
now Judgment should he entered in
the Court OF General Sessions, and
might differ from that in the court
below. still the defendant could not
be required to provide support for a
period beginning anterior to the judg-
fpent in that court. Therefore, the
decision Of the court below was af-
frmed, except as to that point, and
the case was sent back TO the Court
of General Sessions so that Il could
reform its judgment accordingly.
There were some other points OF
law decided. hut they are not OF gem
erai interest
James L. Boyce represented Oon-
aghy. and Armon d. Chaytor. Tr
deputy encouragement, represented
the State.
nnn Inn IN nu-