Defendant was found guilty in the St. Louis
Court of Criminal Correction of failure to support his alleged child born out of wedlock; prosecution was under Section 559.350. (Statutory references are to ESMo 1949 and VAMS unless otherwisе specified.) Defendant appealed to the St. Louis, Court of Appeals which reversed his conviction and ordered him discharged. (State v. White,
The question is whether the putative father of a child born out of wedlock, who has never had the legal care and custody of the child, cаn be convicted of non support under Section 559.350. The facts are adequately stated in the opinion of the Court of Appeals. (243 S. W. (2d), l. c. 819.)
Defendant has filed here a motion to dismiss the transfer and for his discharge. He contends that the Court of Appeals does not have jurisdiction to transfer a criminal case after ordering defendant discharged and that this рlaces him in double jeopardy in violation of Sec. 19, Art. I [842] of the Constitution. Defendant says this is so because making such a transfer is equivalent to allowing an appeal by the State which is not authorized by law, citing State v. Hughes, Mo. App.,
The finality of the judgment of a court of appeals immediately upon the filing of an opinion, is prevented by Sec. 10, Art. Y, which provides for transfer to the Supreme Court by order of the Court of Appeals or of the Supreme Court. Such an order must be made within a reasonable time and that time has been fixеd by Supreme Court Rule 2.06 as authorized by the Constitution. Furthermore, it has long been established that an opinion of an appellate court does not become the decision оf the court upon which a final judgment can be entered until the disposition of a pending motion for rehearing. (See State ex rel. Park National Bank v. Globe Indemnity Co.,
However, we think the Court of Appeals reached the right result. The applicable part of Section 559.350 is as follows: “ # * * if any man
or woman
shall, without good cause, abandon or desert or shall without good cause fail, neglect or refuse to provide adequate ■food, clothing, lodging, medical or surgical attention for his
or her
child or children bom in
or out of
wedlock, under the age of sixteen years,
or if any other person having the legal care or custody of such mimor child,
shall without good cause, fail, refuse or neglect to provide adequate food, clothing, lodging, medical or surgical attention for such child, * * * he
or she
shall, upon conviction, be punished by imprisonmеnt in the county jail not more than one year, or by fine not exceeding one thousand dollars or by both such fine and imprisonment.” The italicised • words were not in the statute prior to 1921 when it wаs amended in these and other respects. (Laws 1921, p. 281.) Prior to that time, the statute (Sec. 3274, R. S. 1919) only made it an offense for “any man” to “abandon his child or children under the age of fifteen yеars born in or legitimatized by lawful wedlock.” Several other sections were adopted in 1921 broadening the law concerning illegitimate children, which are discussed in State ex rel. Canfiеld v. Porterfield,
Strict construction of criminal statutes is a fundamental principle of our law. ‘ ‘ Criminal statutes are to be construed strictly; liberally in favor of the defendant, and strictly against the state, both as to the charge and the proof. No one is to be mаde subject to such statutes by implication.” State v. Bartley,
“The rule is universally adopted that a mother is the natural guardian of her bastard child, and, as such, has a legal right to its custody, care, and control superior to the right of the father or any other person unless it is otherwise expressly provided by statute.” (
Moreover, as pointed out by Judge Bennick in his opinion herein (243 S. W. (2d), l. c. 822), when the Legislature amended Section 559. 350 in 1947 (Laws 1947, Yol. I, p. 259) this statute previously had been so construed in Canfield and Barcikowsky eases and it was reenacted without аny amendment to change this construction. It is significant also that this 1947 amendment was recommended by The Children’s Code Commission (established by the 1945 General Assembly) which had made a thorough study of laws relating to children and'which also recommended a new statute to prescribe procedure for establishment of paternity and to impose upon fathers of illegitimate сhildren the obligation to support them. (See 1946 Report of The Children’s Code Commission to the Governor and General Assembly, Vol. 1, House & Senate Journals, 64th General Assembly, 'p. 118 and p. 136.) For аll these reasons, we think the Court of Appeals has correctly construed Section 559.350 in its opinion herein and has properly overruled. State v. Williams, [844]
Therefore, the judgment is reversed and the defendant discharged.