State v. AustinState v. Austin
Two issues were raised in relator Austin‘s application for writs—the correctness of a trial сourt ruling that the prosecution against Austin for criminal neglect of family was not barred by the state and federal constitutional prohibitions against double jeopardy and the propriety of the court‘s denial of relator Austin‘s motiоn for acquittal. A statement of the history out of which the criminal neglect of family prosecution arose will facilitate an understanding of the legal issues which we must resolve.
A judgment rendered by the Twelfth Judicial District Court in 1977 ordered relatоr Austin to pay to his former wife child support for their younger daughter. All support payments for this child and for an older daughter (which latter payments were made pursuant to a judgment of another district court) ceased in Septembеr, 1978. The former Mrs. Austin, now remarried, took no action during the final months of 1978, but her present husband became unemployed in December, 1978, and commenced receiving unemployment compensation. Seeking enforcement of relator‘s obligation to support his children, Austin‘s former wife filed a rule to show cause seeking judgment for past due child support and contempt. The rule was tried before Judge James N. Lee of the Twelfth Judicial District Court, who rendered judgmеnt convicting relator of contempt for failure to comply with that court‘s 1977 judgment condemning him to pay child support for his younger daughter.1 The court imposed a thirty day sentence, which it suspended upon the condition that relаtor pay past due child support and medical bills, plus attorney‘s fees, to his former wife.
Two days after rendition of the contempt judgment relator was tried pursuant to an earlier filed bill of information charging him with criminal neglect оf family, a violation of
In support of its claim that the court erred when it declined to sustain the plea of double jeopardy, Austin urges that the contempt proceeding conducted as a consequence of his failure to comply with the civil judgment awarding child support for his younger daughter was quasi-criminal in nature. Relator‘s brief urges that because the civil contempt proceeding and the сriminal prosecution arose out of the identical conduct—failure to support minor children
In characterizing the concept of jeopardy in terms of the risk traditionally associated with a criminal prosecution, the United States Supreme Court, in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), explicitly recognized that the risk to which the Dоuble Jeopardy Clause of the Constitution refers is not present in proceedings that are not essentially criminal in nature. In State v. Galjour, 215 La. 553, 41 So.2d 215 (1949) this Court distinguished proceedings similar to those with which we are concerned, recognizing that “... the order of court awarding ... alimony [is] merely an incidental or ancillary proceeding flowing from the divorce action and [is] based on [the parent‘s] obligation [under Civil Code Article 227] to support his children ....” Galjour differentiated such a proceeding from proceedings under
Unlike the situation alluded to in Galjour, in this case more is involved than enforcement of a support award by a pure money judgment. In the сontempt proceeding which we review, the trial judge evidently found Austin‘s failure to pay wilful disobedience of a lawful judgment (
The merit of the defense position turns initially on whether the trial court imposed a civil or criminal sanction at the contempt hearing. Distinguishing between the two penalties is not an easy task. As pointed out by the Court in Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127, 131 (La.1971), “... the similarity between criminal and civil contempt is striking.... [T]hey are almost identical, being governed by the same procedure and by penalties which are not too disparate.”
The United States Supreme Court has focused on the purpose of the contempt penalty imposed, rather than the character of the underlying proceeding, in distinguishing between the two kinds of contempt. In Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) defendants called before a grand jury investigating narcotics offenses refused to testify, notwithstanding a grant of immunity. The trial court found them in contempt and sentenced them to two years’ imprisonment, stipulating that they could win release by testifying. Defendants chаllenged the sentence on grounds the contempt proceeding had neither been initiated by indictment, nor tried to a jury. Despite the criminal nature of the proceedings, the United States Supreme Court denominated their refusаl to testify a civil contempt, one which was therefore not governed by principles of criminal law. The Court announced, “The test may be stated as: what
Applying the analysis of the United States Supreme Court, contempts punished under
Even were we to find necessary a comparison of the “elements” constituting the contempt and the crime of neglect of family in accordance with our traditional “same evidence” test to assure that “... conduct рunished as one crime... [is not] relabeled a different crime and ... punished again.” City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975), we would find that the additional element of finding the children for whom relator did not provide support in destitute or necessitous circumstances (an “element” totally without relevance insofar аs the contempt proceeding stemming from defiance of the court‘s order to provide child support) takes the matter out of the realm of double jeopardy.
For the reasons outlined in the foregoing discussion, we find withоut merit the relator‘s double jeopardy complaint.
Likewise without merit is relator‘s claim that the court erred in denying his motion for acquittal made at the close of the state‘s case. The defense counsel urged the court to direct a verdict, arguing that the state failed to show relator‘s minor daughters were in destitute or necessitous circumstances. Evidence that the husband of the children‘s mother was unemployed and had to rely upon unemployment compensation to support himself, his wife, their two children and relator‘s two minor daughters and testimony of the former Mrs. Austin that the family was burdened with numerous medical expenses is at least some evidence that the children were in necessitous circumstances. Where there is some evidence proving the essential elements of a crime, no question of law is presented. This Court‘s jurisdiction on appeal extends only to questions of law. State v. Victor, 368 So.2d 711 (La.1979). Only the trier of faсt may decide the issue of the sufficiency of the evidence.
Decree
For the reasons stated hereinabove, the relator‘s conviction and sentence are affirmed.
AFFIRMED.
SUMMERS, C. J., concurs in result.
DIXON, J., dissents, because of insufficient proof of necessitоus circumstances.
DENNIS, Justice, dissenting.
The evidence does not support a reasonable trier of court‘s finding of necessitous circumstances beyond a reasonable doubt. See Jackson v. Virginia, ___ U.S. ___, 99 S.Ct. 2781, 61 L.Ed.2d 560, 1979.