Lanham v. State

This is a criminal action commenced by affidavit, in the name of the State of Indiana against Howard Lanham, Noel Lanham, Ruth Lanham, and Ward Lanham, on a charge that the appellants above named being of full age and being financially able, have neglected, without reasonable cause, to maintain and support their father, Frederick Lanham, the said Frederick Lanham being sick and not able to work and not having sufficient means or ability to maintain or support himself.

The trial court found Howard Lanham, Noel Lanham, and Ruth Lanham guilty, as charged in the affidavit and pronounced sentence as follows:

"That each of the appellants be fined in the sum of one dollar ($1.00), and that they each be imprisoned in the Marion County Jail for a period of sixty (60) days; that sentence was suspended on condition that the appellant Noel Lanham pay into the court the sum of five dollars ($5.00) per week, and that each of the appellants Ruth Lanham and Howard Lanham pay into court the sum of one dollar and fifty cents ($1.50) per week for the support of their father, Frederick Lanham."

The appellants rely upon the alleged error of the trial court in overruling their respective motions for new trials. The grounds specified in support of each motion for a new trial were: "(1) That the finding or decision of the court is contrary to law"; and "(2) that the finding or decision of the court is not sustained by sufficient evidence."

Before considering appellants' contention that the decision of the court is not sustained by sufficient evidence and is contrary to law, it is necessary to determine the scope and meaning of the statute. For that purpose the following provisions are sufficient:

"Hereafter, if any person being of full age and being financially able has neglected, or shall hereafter, without reasonable cause, neglect to maintain and support his or her parent or parents, if such parent or parents be sick or not able to work and have not sufficient means or ability to maintain or support themselves, such person shall be deemed guilty of a misdemeanor and, upon conviction thereof shall be fined in any sum not exceeding five hundred dollars ($500), to which may be added imprisonment in the county jail for a period not exceeding six (6) months. . . . The provisions of this act shall not apply to children who have not lived with or who have not been supported by their parents when such children were minors." § 2875, Burns Ann. Ind. St. 1926; § 2893, Baldwin's 1934; § 10-1410, Burns Ind. St. Ann. 1933; Acts 1921, ch. 31, § 1, p. 90; Acts 1923, ch. 15, § 1, p. 53.

At common law children have no legal duty to support parents and the statute in question departs from the common law by imposing such a duty and by making it a criminal offense 1. for a child to neglect "to maintain and support his or her parent, or parents." To be guilty of the misdemeanor which is defined by the statute a child's neglect to maintain and support his parent, or parents, must be without reasonable cause. We understand "reasonable cause" to refer to some fact or facts which exist at the time of the neglect to maintain, or support, and which deprive such act of neglect of any criminal quality. For example, a child might be in ignorance of his parents' need; or the parents might refuse unreasonably to accept the kind of support offered by the children. The neglect of the child to maintain or support must be characterized by wilfullness, but is not excused by reason of the personal conduct of the parent or parents during, or subsequent to, the minority of the children.

It follows that if a parent is physically and financially unable to care for himself, a child of full age, who is financially able to care for such parent, has a legal duty to support the parent; and if the child wilfully refuses to discharge this duty he is guilty of a misdemeanor and punishable in accordance with the terms of the statute.

But the statute expressly excludes from its operation all adult children "who have not lived with, or who have not been supported by their parents when such children were minors." The 2. evident legislative intent was to exempt entirely from its operation children of full age whose parents either had failed to maintain a home for their minor children, or had not furnished, in lieu thereof, support for such children. Since the language of the act does not qualify the clause "when such children were minors" we can not construe this clause as defining any period of time less than the full minority of the children. Consequently the act applies only to children whose parents either maintained a home for them throughout their minority or, in lieu thereof, supported them in other surroundings.

The evidence was sufficient to justify the trial court's finding that the defendants' father was physically and financially unable to support himself and that the defendants were financially able to care for him. Furthermore, the evidence showed that the defendants knew of their father's condition and refused to support him. Consequently the decision of the court was supported by sufficient evidence and was not contrary to law unless the facts completely exempt the defendants from the operation of the statute.

The evidence discloses that the father made no effort to maintain a home for his children after 1918, at which time the defendants, Howard, Noel, and Ruth Lanaham were fifteen, 3, 4. twelve, and ten years of age, respectively, and their sister, Gracie Mae, was a seven-month-old infant. From January, 1919, to 1926, the father, under a court order, paid $8.50 a week for the support of Noel, Ruth, and Gracie Mae, and from 1926 until 1929, when he became incapacitated, he paid $5.00 a week. When the payments ceased all the children but Gracie Mae were over twenty-one years of age.

There is no evidence to indicate that Howard received any support after October, 1918, nor that he lived with his father after that time. Consequently Howard clearly comes within the exemption of the statute, and, as respects him, the decision was contrary to law.

The evidence is undisputed that from January, 1919, until 1928 or 1929 the father, under a court order, contributed an average of over thirty ($30) dollars a month to the support of Noel, Ruth, and Gracie Mae. There was evidence to indicate that Noel and Ruth lived with their father until October, 1918, and that thereafter he paid the aforesaid sum during their minority. The evidence shows that during the period from 1918 to 1929 Howard, Noel, and Ruth were contributing to the family support. During the period of minority of Noel and Ruth the amount contributed by the father could not have furnished more than the barest existence for Noel, Ruth, and Gracie Mae. Noel, himself, contributed to the support of the family, including the mother, more than the amount of the court allowance. Chiefly through the earnings of Noel and Howard it was possible for the mother to keep the family together and for Noel, Ruth, and Gracie Mae to continue in school without recourse to public agencies. From October, 1918, to June, 1926, when the father obtained a divorce, Howard and Noel assumed their father's legal duty of supporting their mother.

Since it is clear that the father made no effort to maintain a home for his children after October, 1918, the legal responsibility of defendants, Noel and Ruth, depends upon whether the forced contributions of the father, made under order of court, constituted support of Noel and Ruth when they wereminors.

We are of the opinion that it cannot be said that children have been supported by a parent "when such children were minors," when, as in the instant case, the father has abandoned his family and has left the mother and four minor children to shift for themselves, and when his forced contribution to their support was obviously inadequate to furnish the necessaries of life, including opportunities for at least a common school and high school education; and when the infant children themselves contributed a substantial portion of the support of the family.

We conclude that the defendants did not live with their father "when they were minors"; and that he did not support them within the meaning of the statute during their minority. Consequently the decision of the trial court was contrary to law and the motions for new trials should have been sustained.

Judgment reversed with directions to the trial court to sustain the defendants' several motions for new trials and for further proceedings not inconsistent with this opinion.

Hughes and Tremain, J.J., concur in result with opinion by Hughes.

Roll, J., concurs in result with separate opinion.