*1 Gilmour v. State Indiana. 28,836. Rehearing
[No. Filed March denied April 7, 1952.] *2 Greensburg, Myers, appellant. A. David Attorney General; William McManamon, J. Emmett O’Connor, Ready Deputy Attor- John McClain and T. General, appellee. neys Appellant was by affidavit
Jasper, J. children neglecting wilfully food, care, and cloth necessary home Replacement. He ing, Burns’ §10-1402,1 under provides, Replacement, 10-1402, Burns’ Section part, as follows: mainte- or, with the father, law when “The children, mother, under four- thereof, of a child nance plea supplemental filed a and a plea abtatement, challenging of the Rush to which demurrers were plea filed and sustained. A guilty entered, by jury was waived, trial finding judgment there was a guilty, and sent- ence followed. presented
The sole error is action of the trial sustaining court in plea the demurrers to the in abate- supplemental plea ment and the in abatement. plea supplemental plea show, in abatement among things, prosecuting other that and the 27, 1937, witness were married on November as a result children; they of which had four that a divorce granted to them March the Decatur Cir- Court; cuit of the four all under age, given years prosecuting fourteen *3 appellant witness; pay that was ordered to to the Clerk per week, of the Decatur Circuit the sum of $18 use, benefit, children; for the and care of the on that 1949, appellant delinquent was November in his contempt proceedings support payments, and filed were ordering cause; hearing that appellant to show was advisement; matter taken under had and the that prosecuting again 15, 1950, the April witness filed con- hearing tempt proceedings; was the that had and advisement; matter under that affi- court took the the against charging the criminal offense filed davit was August 10, Appellant’s supplemental appellant on reformatory one conviction, teen child or children either earnings, [1] clothing [14] year: reason years be for shall shall punished . . . of not more than seven of wilfully neglect having be deemed age, necessary by imprisonment living means or guilty and this or refuse to by personal services, of a [7] state, who, in the years nor felony, and, home state being care, less prison labor upon than able, such food plea in abatement further shows that the Decatur Cir- jurisdiction appellant, had over cuit Court still might power fit to to such orders it deem make care, food, clothing provide proper for chil- said application dren; prosecuting witness that the of the why support require the show cause paid, punished money fully that he be not been court, the contempt under advisement Court; further, appellant had that Decatur Circuit support money it applied all order that to such weekly wages. possible him to do under Appellant the did contends that Rush Circuit Court bar, jurisdiction the in the case at not have filing the criminal affidavit was a collateral jurisdiction the the Decatur Cir attack has said that hav cuit This court a court Court. subject-matter jurisdiction parties and of the particular case. also must have v. Ferger rel. Circuit Ct. ex This has further said that where E. 2d 585. court
N. act, the is an omission to do an crime county act where the of the offense is venue2 performed. The act in case have should been children. performed to be bar act, place perform act omission of which charged, County was in Rush in the crime resulted Yocum, (1914), 182 v. resided. State the children where See, also, E. States United 1213, 90 U. S. 66 S. Ct. Anderson filed in the Rush The affidavit L. Ed. 1529. *4 pend offense, charged the action a criminal
Court charged civil con a in the Decatur Circuit (1905), Perry N. E. tempt. Pernet 165 74 v. appel only Court could coerce The Decatur Circuit 609. 2 219 Ind. 37 E. 2d 73. Brown v. N. See State
458 doing punish
lant into an affirmative act. It could not charged him for the criminal offense under §10-14.02, Replacement. 1942 Burns’ State rel. ex McMinn v. Gentry (1951), 229 Ind. 100 N. E. 2d The criminal was not a collateral attack offense jurisdiction upon of the the Decatur Circuit Court.3 Court, The Decatur Circuit under §3-1219, Burns’ 1946 Replacement, provision custody sup made for the port Court, the of minor the Rush but Circuit jurisdiction resided, in whose the minor children later offense, jurisdiction appel of the criminal wherein wilfully neglecting lant jurisdiction for his minor children. The the applica Decatur Circuit Court invoked the appellant. contempt jurisdiction civil tion for The in the Rush Circuit Court invoked criminal contempt proceeding appellant offense. From the could purge key jail. himself. alone He holds the to the Gentry, supra. rel. McMinn v. State ex From offense, beyond proved doubt, criminal if a reasonable purge himself, could neither nor does hold he jail. invoking key in the Rush Circuit Court criminal offense was not jurisdiction of, an interference nor collateral upon proceedings in, pending attack the Decatur right change modify nor its order. constituting “The fact that an act an indirect or con- contempt may structive is also an offense for which the accused prosecuted criminally deprive be does not the court its inherent power punish guilty party contempt.” Dangel, Con- tempt, §216, p. 104. also,
See, Crime,” §418, p. “Same Acts Punishable as Duensing Roby ex rel. See al. et contempt E. 145. Punishment and for a does crime person put twice in jeopardy.
459' properly plea to the in abatement was The demurrer sustained.
Judgment affirmed.
Note.—Reported 2d in 104 E.N. FOR REHEARING
ON PETITION Appellant, in rehearing, petition for his Jasper, J. clarify by opinion in requested to this court its has alleged plea serting in in abate his additional facts substance, ment, are, in as follows: which order of the Decatur compliance with the That in Court, the divorce was the court in which weekly payments granted, and the order to make made, paid of the Decatur Circuit he had to Clerk order, $4,241.70; pursuant Court, to that sum August prior payment on to the that made a he August filing and affidavit criminal payments to continued make shown thereafter appellant’s plea abatement; in supplemental wife, including his consisted of that of property, sole mortgage furniture, subject to a kitchen and household company only $187, his and of a finance in favor gave labor, him a take-home his which income was from wilfully week; that he did not each check $37.13 comply neglect the court’s order with or refuse ability. best of supplemental did not plea plea in abatement
The and action, and, allege at to abate the facts sufficient they facts in bar considered most were to be time the court of trial. language was in the
The offense neglect- wilfully Appellant was statute. children. for his minor plea show supplemental in abatement plea appellant on their face that complying was not said, order of the court. As heretofore these were mat- ters defense abatement. If fully paid support, as ordered in the Decatur Circuit good it would have been defense in the Rush The Decatur Circuit Court. Circuit Court still retains change modify sup- *6 port order.
Appellant, petition in rehearing, his brief on con tends that he payments is ordered now to make two week,1 per per week, sup or a total of $18 $36 port of agree. his minor children. we not With this do Appellant required by court, is a condition as of his probation, pay per support week for the $18 Upon showing minor children. to the Decatur payment made to the Rush Circuit should support payment be credited on the as ordered the Decatur Circuit Court.
Appellant petition in contends further for re v. State hearing that the case of Manners (1936), 210 648, Ind. 5 N. E. 2d criticized and overruled the State v. Yocum case of 106 N. E. agree. With 705. this we do not The first-cited case appeal was an from a conviction based on an indictment Replacement. under §10-1401, Burns’ 1942 The case prove desertion, was reversed for failure to or that the children were left support without reasonable means of continuing charge support, any county township court, Case, in in the Manners this state. The discussing Case, the Yocum part (p. said 652 210 Ind., p. 2d) 302 of 5 N. E. : “The case not authority, should be considered as least, in cases controversy where there is as complying whether the husband is Spade App. 529, See v. State 604. E. respect court in divorce order appear not it does where being supported.” are the children nor overruled criticized Manners Case neither decided and venue questions of Yocum, supra. State contentions, he appellant’s considering all of
After in our decision erred have us that we not convinced has rehearing therefore is petition for case, and his in this denied. 2d
Note.—Reported in 104 N. E. Indiana v. Huebner Rehearing 28,831. denied March Filed [No. April 1952.]