Summary
In Francis v. State (1945), 223 Ind. 186, 59 N.E.2d 565, the defendant was charged with "wilfully failing to provide food, clothing, shelter and medical attention" for his [5] children.
Summary of this case from Burris v. StateOpinion
No. 27,988.
Filed March 8, 1945.
1. PARENT AND CHILD — Wilful Failure to Provide for Children — Evidence — Element of Wilfulness Provable by Circumstantial Evidence. — In a prosecution for wilful failure to provide for minor children, the element of wilfulness, like any other fact, may be proved by circumstantial evidence. p. 188.
2. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Credibility of Witnesses to be Determined by Trial Court. — Where the evidence is conflicting, it is for the trier of the facts to determine the credibility of each witness and the weight to be given to his or her testimony. p. 188.
3. PARENT AND CHILD — Wilful Failure to Provide for Children — Evidence — Wilfulness Inferrable from Facts Shown. — In a prosecution for wilful failure to provide for minor children, evidence that accused would voluntarily leave his employment and then loaf about town and go to shows, and that twice during the year preceding the filing of the charge he had passed a physical examination in applying for work, was sufficient to authorize an inference of wilfulness and perversity of design, notwithstanding other evidence as to illness of accused and his ability to work at hard labor. p. 188.
4. PARENT AND CHILD — Wilful Failure to Provide for Children — Evidence — Age of Children — Proof Sufficient. — Where, in a prosecution for wilful failure to provide for minor children, it could be inferred from the facts proved that one child was one year of age and the other two years of age, and it was plainly stated from the witness stand that the two minor children were the son and daughter of accused, accused could not complain that the State failed to prove the ages of the children and that they in fact were his. p. 188.
5. CRIMINAL LAW — Appeal — Evidence — Sufficiency — Evidence Tending to Support Decision Considered. — In determining whether a judgment of conviction is sustained by the evidence, the Supreme Court can consider only the evidence tending to support the decision, together with the reasonable inferences that may be drawn therefrom and cannot give any consideration to any evidence which is contradictory thereto. p. 188.
From the Vigo Circuit Court; Winfield M. Fox, Special Judge.
Paul Francis was convicted of wilfully failing to provide food, clothing, shelter and medical attention for his minor children, and he appealed.
Affirmed.
Randolph H. Mayes, of Terre Haute, for appellant.
James A. Emmert, Attorney General, Frank Hamilton, First Deputy Attorney General, and Forrest P. Jones, Deputy Attorney General, for the State.
The appellant was charged by affidavit with wilfully failing to provide food, clothing, shelter and medical attention for his two minor children under § 10-1405, Burns' 1942 Replacement, § 2888, Baldwin's 1934.
The only claim of error is predicated on the sufficiency of the evidence to sustain the decision of the court. It is not claimed that the defendant provided for his children, in fact, he admitted that he had done nothing for their support during the time specified in the affidavit. To avoid the effect of this evidence, he claims that it does not show that the failure to provide was wilfully done with a perverse design. The basis for this claim is that the appellant and his brother testified that appellant had been ill for a matter of some years, and that two physicians made statements in writing that appellant could not work at hard labor. However, it also was in evidence that the appellant would quit a job and then loaf about town and go to shows, and that twice during the year preceding the filing of the charge he had passed a physical examination when applying for work.
It is not necessary to prove the element of wilfulness by direct or positive evidence. This like any other fact may be proved by circumstantial evidence. Schaffer v. State 1-3. (1930), 202 Ind. 318, 173 N.E. 229. The evidence was in conflict, and it was for the trier of the facts to determine the credibility of each witness and the weight to be given to his or her testimony. Indiana Insurance Co. v. Handlon (1940), 216 Ind. 442, 24 N.E.2d 1003. From the evidence before it, the court could infer wilfulness and perversity of design.
It is also claimed that the State failed to prove the ages of the children, and that they were in fact the children of the appellant. However, from the facts proved, it could be 4. inferred that one child was one year of age and the other two years of age, in fact, no other inference was possible, and it was plainly stated from the witness stand that the two minor children were the son and daughter of the appellant.
In determining whether or not the decision is sustained by the evidence, we can consider only that evidence tending to support the decision, together with the reasonable inferences that 5. may be drawn therefrom, and cannot give any consideration to any evidence which is contradictory thereto. Peachee v. State (1939), 216 Ind. 42, 22 N.E.2d 979. The claims of the appellant are not well founded, and since the appellant's claim that the evidence is not sufficient is based entirely on the matter heretofore discussed, no error is shown.
The judgment is affirmed.
Note. — Reported in 59 N.E.2d 565.