State v. Counort , 69 Wash. 361 ( 1912 )

Morris, J.

Appellant was convicted of a violation of the school law in neglecting and refusing to cause his children, between the -ages of eight and fifteen years, to attend the public school of the district in which he resides, or any approved private school, without obtaining an excuse for such failure and neglect to attend, from the county superintendent of schools. From such conviction he appeals.

The first error assigned is that the information does not charge a crime. The statute under which the information is drawn is Rem. & Bal. Code, § 4714:

“All parents, guardians and other persons in this state having or who may hereafter have immediate custody of any child between eight and fifteen years of age (being between the eighth and fifteenth birthdays), . . . shall cause such child to attend the public school of the district, in which the child resides, for the full time when such school may be in session or to attend a private school for the same time, unless the superintendent of the schools of the district in which the child resides, if there be such a superintendent, and in all other cases the county superintendents of common schools, shall have excused such child from such attendance because the child is physically or mentally unable to attend school or has already attained a reasonable proficiency in the branches required by law to be taught in the first eight grades of the public schools of this state as provided by the course of study of such school, or for some other sufficient reason. Proof of absence from public schools or approved private school shall be prima facie evidence of a violation of this section.”

If we understand the objection made to the information, it is in the use of the word “approved,” in charging the neglect or refusal to permit the children to attend an “approved private school.” We can see no objection to the use of this word. The statute does not, in the first instance, provide that the private school shall be an approved one. The gist of the offense is in the failure to attend any school, either public or private, without having obtained an excuse for such failure from the superintendent of schools. The information clearly charges this refusal, and is sufficient.

The main assignments of error are in the admission and rejection of testimony, and as they all go to the same contention, they may be discussed together. The theory of appellant in this connection is that it would be a defense to this charge to show that he is experienced as a teacher and qualified to teach all branches required to be taught in the public schools of this state, and that he maintains a private school at his home for the instruction of his own children. We have no doubt many parents are capable of instructing their own children, but to permit such parents to withdraw their children from the public schools without permission from the superintendent of schools, and to instruct them at home, would be to disrupt our common school system and destroy its value to the state. This statute recognizes that adequate private schools may be maintained in any district to which parents may send their children without any violation of the law, and it would be a good defense to show attendance at such private school for the required time. We do not think that the giving of instruction by a parent to a child, conceding the competency of the parent to fully instruct the child in all that is taught in the public schools, is within the meaning of the law “to attend a private school.” Such a requirement means more than home instruction; it means the same character of school as the public school, a regular, organized and existing institution making a business of instructing children of school age in the required studies and for the full time required by the laws of this state. The only difference between the two schools is the nature of the institution. One is a public institution, organized and maintained as one of the institutions of the state. The other is a private institution, organized and maintained by private individuals or corporations. There may be a difference in institution and government, but the purpose and end of both public and private schools must be the same—the education of children of school age. The parent who teaches his children at home, whatever be his reason for desiring to do so, does not maintain such a school. Undoubtedly a private school may be maintained in a private home in which the children of the instructor may be pupils. This provision of the law is not to be determined by the place where the school is maintained, nor the individuality or number of the pupils who attend it. It is to be determined by the purpose, intent and character of the endeavor. The evidence of the state was to the effect that appellant maintained no school at his home; that his two little girls could be seen playing about the house at all times during the ordinary school hours. No effort was made to refute this testimony. Appellant seemed to be impressed with the belief that, if he was a competent and qualified teacher and gave instruction to his children at his home, he maintained a private school within the meaning of the law. Such is not a compliance with the law.

We find no error in any ruling of the court upon questions propounded to witnesses for the state upon cross-examination. What has been said disposes of appellant’s contention in this regard, except in one instance, where two questions were united in one, to which an objection was sustained. Counsel for appellant then asked leave to separate his questions, which was granted. He then asked a question clearly objectionable within what has heretofore been said, but made no attempt to include in any further question the matter which might have been proper in his first question if properly severed from the objectionable matter. Not having availed himself of the ruling of the court, appellant cannot now say error was committed.

Complaint is made of three of the instructions. The only exception we can find to the instructions is this: “The defendant excepts to each and every of the instructions.” This exception is too general and, under the well settled rule, does not call for a review of the instructions.

The judgment is affirmed.

Mount, Fullerton, Crow, and Ellis, JJ., concur.