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Imperial v. State

Supreme Court of Arizona

January 20, 1947

IMPERIAL
v.
STATE

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Francisco Imperial was accused of the crime of failure to provide for minor children, and he moved to quash the information. From an order denying the motion to quash, the defendant appeals.

Appeal dismissed.

Harry J. Valentine and Ralph Estrada, both of Phoenix, for appellant.

John L. Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Edwin Beauchamp, Co. Atty., and R. H. Renaud, Deputy Co. Atty., both of Phoenix, for appellee.

La Prade, Judge. Stanford, C. J., and Udall, J., concur.

OPINION

La Prade, Judge.

[65 Ariz. 151] Defendant was accused of the crime of failure to provide for minor children, a felony. A portion of the charge reads as follows:

"The said Francisco Imperial * * * being then and there the parent of certain minor children, the parentage of said children having been made and entered the 26th day of April, 1941 in a bastardy proceedings in this Court, to-wit: (children's names) did then and there wilfully and without lawful excuse, fail, neglect and omit to furnish the said minor children with necessary food, clothing, shelter and medical attendance; * * *."

To this information defendant filed a motion to quash upon the ground that the criminal statute under which the prosecution was instituted was not broad enough to include the subject of support of illegitimate children. The motion to quash was denied. This appeal is from that order.

This attempted appeal does not lie for the reason that no appeal may be taken from an order denying a motion to quash an information. "An appeal may be taken by the defendant only from: (a) A final judgment of conviction. (b) A sentence on the ground that it is illegal or excessive." Section 44-2506, A.C.A.1939.

Inasmuch as the subject matter and grounds for the attempted appeal, a repetition of the motion to quash, are of prime importance to citizens of the state, its courts and law enforcement officers, we feel that we should take cognizance of them and state our views thereon.

The appellant argues that inasmuch as the provisions of the Arizona law making it a felony for any parent who wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for his or her minor children contain no reference therein to any child born out of wedlock, there was no offense over which the superior court had jurisdiction. The statute under consideration reads as follows:

"Failure of parent to provide for minor child. -- A parent who wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter or medical attendance for his or her minor child is ...


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