Appellant was charged by affidavit with wilfully neglecting and refusing to provide his children with necessary and proper home care, food, and clothing, under § 10-1402,
The sole error presented is the action of the trial court in sustaining the demurrers to the plea in abatement and the supplemental plea in abatement.
The plea and supplemental plea in abatement show, among other things, that appellant and the prosecuting witness were married on November 27, 1937, as a result of which they had four children; that a divorce was granted to them on March 2, 1945, by the Decatur Circuit Court; that custody of the four children, all under fourteen years of age, was given to the prosecuting witness; that appellant was ordered to pay to the Clerk of the Decatur Circuit Court the sum of $18 per week, for the use, benefit, and care of the children; that on November 12, 1949, appellant was delinquent in his support payments, and contempt proceedings were filed ordering appellant to show cause; that a hearing was had and the matter taken under advisement; that on April 15, 1950, the prosecuting witness again filed contempt proceedings; that a hearing was had and the court took the matter under advisement; that the affidavit charging the criminal offense was filed against appellant on August 10, 1950. Appellant's supplemental
Appellant contends that the Rush Circuit Court did not have jurisdiction in the case at bar, and that the filing of the criminal affidavit was a collateral attack upon the jurisdiction of the Decatur Circuit Court. This court has said that a court having jurisdiction of the subject-matter and of the parties must also have jurisdiction of the particular case. State ex rel. Ferger v. Circuit Ct. (1949), 227 Ind. 212, 84 N.E.2d 585. This court has further said that where the crime charged is an omission to do an act, the venue
NOTE. — Reported in 104 N.E.2d 127.
ON PETITION FOR REHEARING
Appellant, in his petition for rehearing, has requested this court to clarify its opinion by inserting additional facts alleged in his plea in abatement, which are, in substance, as follows:
That in compliance with the order of the Decatur Circuit Court, the court in which the divorce was granted, and the order to make weekly payments was made, he had paid to the Clerk of the Decatur Circuit Court, pursuant to that order, the sum of $4,241.70; that he made a payment on August 2, 1950, prior to the filing of the criminal affidavit on August 10, 1950, and thereafter continued to make payments as shown by the supplemental plea in abatement; that appellant's sole property, including that of his wife, consisted of household and kitchen furniture, subject to a mortgage in favor of a finance company for $187, and his only income was from his labor, which gave him a take-home check of $37.13 each week; that he did not wilfully neglect or refuse to comply with the court's order to the best of his ability.
The plea and supplemental plea in abatement did not allege facts sufficient to abate the action, and, at most they were facts in bar to be considered by the court at the time of trial.
The offense charged was in the language of the statute. Appellant was charged with wilfully neglecting and refusing to provide for his minor children. The plea and supplemental plea in abatement show
Appellant, in his brief on petition for rehearing, contends that he is ordered now to make two payments of $18 per week,
Appellant further contends in his petition for rehearing that the case of Manners v. State (1936), 210 Ind. 648, 5 N.E.2d 300, criticized and overruled the case of State v. Yocum (1914), 182 Ind. 478, 106 N.E. 705. With this we do not agree. The first-cited case was an appeal from a conviction based on an indictment under § 10-1401, Burns' 1942 Replacement. The case was reversed for failure to prove desertion, or that the children were left without reasonable means of support and continuing support, or a charge upon any county or township in this state. The court, in the Manners Case, discussing in part the Yocum Case, said (p. 652 of 210 Ind., p. 302 of 5 N.E.2d):
The Manners Case neither criticized nor overruled the questions of jurisdiction and venue as decided in State v. Yocum, supra.
After considering all of appellant's contentions, he has not convinced us that we have erred in our decision in this case, and his petition for rehearing is therefore denied.
NOTE. — Reported in 104 N.E.2d 742.
See, also, "Same Acts Punishable as Crime," § 418, p. 183.