174 Wis. 85 | Wis. | 1921
It is contended by the appellant that the evidence does not sustain the findings and that the court was therefore in error in ordering the child committed to the Wisconsin industrial school for boys. In our consideration of this matter we are, of course, limited to the matters appearing of record. From the record the following facts appear, stating them most favorably for the state: Arnold was absent during the school year fifty-seven and one-half days, it not appearing whether the absences were excused or unexcused. His class standings were poor, the grades running, beginning with the highest, A, B, C, D, and E. He received two Cs and six Ds. It appeared that the absences were usually upon Friday and were with the consent of the father, and that he was permitted to be absent for the purpose of working in order to earn money with which to buy himself clothes. There was a school picnic to which Arnold was not invited. Against the protest of the teacher he accompanied the children. While on the way to the picnic grounds some of the boys left the party to get a drink of water. Arnold joined this party and had in his possession some dynamite caps and some fuse. He attached a fuse to one cap and exploded it, as he says, for the purpose of frightening the party. A fuse was attached to a second cap, lighted, and then thrown out, and was picked up by the son of the complainant. It exploded in his hand, producing serious injuries. Arnold’s mother died in 1914, leaving him and five other children. Arnold’s grandfather is also a member of the family. After the death of the mother the family was cared for by the daughters. The father is a common laborer and at the time of the mother’s death was receiving $1.50
While it is said in Jensen v. Jensen, 168 Wis. 502, 170 N. W. 735, that the paramount right of the father to the custody of his children has become the merest prima facie right, which yields readily when it is shown not to be for the best interests of the child, that language must be understood in connection with the facts in that case. There was a contest between the father and the mother as to the custody of an infant girl Dorothy, four and one-half years of age. The question here involved and in most cases of child delinquency is whether or not the interest of the child will be promoted by taking the child out of the family and placing it in a public institution, which is a question fundamentally different from that involved in the Jensen Case. Sec. 3964, Stats., declares:
“The father of the minor, if living, and in case of his death the mother, being themselves respectively competent to transact their own business and not otherwise unsuitable, shall be entitled to the custody of the person and estate of the minor, and to the care of his education.”
This statute has not been repealed and the rights preserved to the father and mother under that section still remain, and they are substantial rights.
In this case the court found that Arnold was habitually truant and incorrigible and upon that finding holds that he is delinquent within the meaning of sec. 48.01, and by the judgment of the court the father is deprived of the care and custody of his child, the child is taken out of the family and sent to a public institution. Sec. 40.73,-which defines compulsory school attendance, contains the following provision:
“Any person who shall be proceeded against under the provisions of this subsection may prove in defense that he is unable to compel the child under his control to attend school or to work, and he shall be thereupon discharged from liability, and such child shall be proceeded against as incorrigible, or otherwise, according to- law, and in case of commitment, if the parents or. person having control of such child desire it, such child shall be committed to a school or association controlled by persons of the same religious faith as such child, which is willing and able to receive and maintain it without compensation from the public treasury.”
The law contemplates that the parent shall first be proceeded against if for any reason a child within his care and custody does not comply with the law relating to compulsory school attendance. There is no evidence in this case that the truant officer, the school ■authorities, or any one else had
It may well be that there are parents in the state of Wisconsin who do not fully understand the purpose and objects of our recent legislation in regard to the education, protection, and reformation of children and that such legislation imposes upon parents a positive duty and a much higher obligation than that under which many parents suppose themselves to labor. The parent no longer has the right to decide whether his child shall attend school or work; the law determines that for 'him.
It is not the intent and purpose of the statute to visit upon the child a penalty for the neglect of his parent. Unless our juvenile laws are sympathetically and under standingly administered, they are likely to result in more harm than good. Properly administered they may become instruments of great value to the state. They certainly should not be administered as a criminal statute. It is the intent and purpose of the law to supplement the home in cases where it is needful. A result should not be. arrived at which deprives a child of a home, or a parent of the right to the custody
It is argued on behalf of the state that the child Arnold is guilty of an offense. The findings made by the court are as previously stated. In the recitals of the order committing the child to the Wisconsin industrial school for boys there is an attempt on the part of the court to amplify the findings. If such recitals be treated as findings, we are of the opinion that the evidence is wholly insufficient to sustain the finding that the child Arnold “was guilty of wilfully and recklessly lighting and throwing near small children on a school picnic two fuses with dynamite caps attached, which caps exploded, and one of which, being picked up by a small child, caused severe mutilation of one of his hands;” that “he stole the caps and fuse and threw such fuse and caps with the intention of scaring away the teacher and children on the picnic so that he and other boys with him could steal the lunch.” The evidence in this case establishes no more than that the child Arnold, in the endeavor to carry out a boyish prank, having found the caps and fuse in question near a stump apparently abandoned, attempted to frighten the teacher and children by exploding them. Neither do we think that the recital that Arnold is without proper parental control and that he is incorrigible and delinquent can be sustained. The trial court seems to have misconceived the object and purposes of the provisions of ch. 48, Stats. This law was not designed as a method of punishment for crimes committed by juveniles. Every section- and paragraph of the statute is permeated with the benevolent purpose of improving the
. We can find no evidence which sustains the recital that Arnold’s home is not a fit and proper place for him. It appears that the father, although earning low wages, having the care of an aged father as well as his children, has been able to provide a home which is now paid for, and, so far as the evidence shows anything, it shows that the father is a hard-working, industrious, frugal, thrifty man. While the children have suffered an irreparable loss in the death of their mother, there is nothing in the case which warrants the finding that the home is not as good as thousands of other homes which exist under like circumstances. We find nothing in the record which suggests on the part of the father any lack of interest in his children, or lack of affection for them, or lack of desire to do for them all that his circumstances permit. He has, no doubt, done the best he could, and he ought not to be penalized for his failure to do more. The accident to the child of the complaining witness was most unfortunate. Dangerous situations and instruments have a well known fascination for children. There is nothing to indicate that Arnold intended to do more than frighten his schoolmates and their teacher or that he expected or anticipated that the Krakau boy .would pick up this lighted fuse. The circumstances are most regrettable, but neither the interests of the child nor those of society at large will be advanced by the infliction of such a penalty as the judgment of the court prescribes in this case.
By the Court. — The order and judgment of the county court of Price county, sitting as a juvenile court, is reversed, and the clerk of this court is directed to forthwith remit the record in this case to the county court of Price county, and the Wisconsin industrial school for boys is directed to forthwith surrender the custody of the child Arnold to his father, the appellant here.