LOUIS FEKANY
v.
STATE
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Louis Fekany was convicted of unlawfully withholding means of support from his six minor children. The Florida Supreme Court reversed, holding that the trial court's jury instruction improperly permitted conviction without proof that the defendant possessed or had the ability to obtain means of support for the children.
A conviction for unlawfully withholding means of support requires proof that the accused possessed or had the ability to obtain the means of support and that the dependents needed support from which it was withheld. The trial court erred in instructing the jury that it was no defense that the children were being supplied by the mother, because withholding presupposes both the existence or ability to obtain means of support and actual need from whom support is withheld.
“Withholding' the means of support means something more than failure to support or 'non-support.' It presupposes the existence or the ability to obtain the 'means of support' by the accused and need by the alleged dependent or dependents from whom support is withheld.”
Establishes the strict construction required for criminal support statutes and the elements necessary for a withholding conviction.
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Join FLexlaw to unlock all legal intelligenceFekany was married to Olga Fekany and had six minor children. The children lived with their mother in a house that she owned and owned other rental pr…
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The writ of error brings for review a judg*52ment of conviction of the offens'e of unlawfully withholding means of support from six minor children. The charge was in the following language:
“Being then and there lawfully married to one Olga Fékany, and having then and there six (6) children, the lawful issue of said marriage, to-wit: Anthony, age 9, George, age 11; Albert, age 13; Genivieve, age 15; Juliette, age 16; and Jimmie, age 18; did then and there unlawfully withhold from them and each of them the means of support.”
That the defendant possessed, or was able to earn means of support for his children is hardly established by the evidence, though the evidence does establish that'he could have contributed to the support of the children; and that it was his' duty to so' contribute can not be denied.
The record shows that the children lived in a house with their mother and that the house was her property. That she had other property which was rented; that she owned an automobile and provided the necessities of life for herself and the children.
The Court, in his' charge to the jury, gave the following instruction:
“It is no defense to a father charged with deserting and withholding the means of support from his children that the children are being supplied with the means of support by the mother out of her own means' or by her own exertions or labors, or by the children’s own labors, but if the mother has' money or property supplied by the father with which to supply the children with the means of support, then he would not be guilty.”
Exception was duly noted to this instruction.
The instruction is in conflict with the law as enunciated *53by this Court in the case of Stedman v. State, 80 Fla. 547. 86 Sou. 428, in which it was said:
“At common law abandonment by or neglect of a husband to support his wife was not a criminal offense. 21 Cyc. 1611. The statutes therefore making such acts indictable and punishable as a crime must be strictly construed. ‘Withholding’ the means of support means something more than failure to support or ‘non-support.’ It presupposes the existence or the ability to obtain the ‘means of support’ by the accused and need by the alleged dependent or dependents from whom support is withheld. That which has no existence, actual or potential, cannot be withheld; neither can that be withheld which is already possessed.”
The giving of this' charge was error for which the judgment should be reversed.
It is so ordered.
Reversed.
Whitfield, C. J., and Terrell, Brown and Davis, J. J., concur.
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Citator
Cited By
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Mallory Chavers v. State, 141 Fla. 470 (Fla. 1940)…ror we review judgment of conviction of the offense denounced by Section 5469 R. G. S„ 7654 C. G. L. On the trial the State failed to meet the rule enunciated [*471] in the case of Stedman v. State, 80 Fla. 547, 86 Sou. 428, and in Fekany v. State, 121 Fla. 51, 163 So. 221. The record shows that the child was an infant, about three weeks old living with its mother and her parents and the record fails to show that the child did not have what its necessities require. This statute or proceeding thereunder…
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Byrne v. State, 365 So. 2d 812 (Fla. 1st DCA 1979)…). He contends that the evidence was insufficient to prove the essential elements of the offense. We agree and reverse. For a conviction to be upheld under this statute, there must be a showing that the minor children were in need. Fekany v. State, 121 Fla. 51, 163 So. 221 (1935); Busch v. State, 97 Fla. 332, 120 So. 762 (1929); Griner v. State, 322 So. 2d 647 (Fla. 1st DCA 1975). Here, there was a clear absence of evidence to establish need and thus the evidence is legally insufficient. The purpose of th…
Authorities Cited
- Schultz v. State, 80 Fla. 564 (Fla. 1920)
- Stedman v. State, 80 Fla. 547 (Fla. 1920)