(dissenting).
The statute upon which this case must turn is invoked for the protection of the minor children and not for the purpose of shielding a wrong-doing parent.
The mother and father of the three minor children were separated and the mother was the sole provider. Larry Bell, their fifteen year old son, testified that appellant was present in the Bell home on numerous occasions, sometimes sober, sometimes drunk; that he would come into the house at all hours of the day and night, and sometimes stay overnight. Larry testified that before the children were abandoned, appellant and his mother left the house and were out all night; that the following day they went out again at 7:00 P.M. and never returned to the home. The mother left as the sole provision for these three dependent children the sum of about $20.00 and made wholly inadequate arrangements for their care.
The evidence revealed that appellant was aware of the presence of the children and knew that this woman was their mother. His actions.in taking the mother away from her home and children appear to have been willful and by design. Such removal alienated her from her children and responsibility. I cannot agree with the majority *688opinion that the appellant had no knowledge that this was, in fact, what he was doing. My esteemed colleagues seem to have concluded that scienter or knowledgeable intent was a necessary element in this case. I feel that the evidence indicates that there was knowledge on the part of the appellant, or it should have been imputed to him, that his conduct would work a hardship on these children.
“Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when in terms not required. The Legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and, if such legislative intention appears, the courts must give it effect, although the intent of the doer may have been innocent. * * * The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. * * * ” (Emphasis ours.) Smith v. State, 223 Ala. 346, 136 So. 270; Fiorella v. City of Birmingham, 35 Ala.App. 384, 48 So.2d 761; Leonard v. State, 38 Ala.App. 138, 79 So.2d 803.
In Dixon v. State, 40 Ala.App. 465, 115 So.2d 262, the court states:
“Statutory crimes, unless employing such expressions as ‘willfully,’ ‘intentionally,’ or ‘knowingly,’ do not ordinarily require proof of mens rea. * * * ”
Hence, it is clear that when an act is made criminal by legislative statute, knowledge is not an essential element in establishing the guilt of the wrong-doer. On this point alone I would feel it necessary to dissent.
The majority opinion feels that the mere fact that the father was present in the same city with the children would be sufficient to absolve the mother of guilt. The applicable statutes state in part as follows:
“Sec. 366. It shall be unlawful for any parent, guardian, or other person to aid, encourage or cause any child under sixteen years of age to become or remain dependent, neglected or delinquent * * * or by neglect of any lawful duty or in other manner contribute to the dependency, etc. * * (Emphasis ours.)
“Sec. -350. * * •* who is without a parent -or guardian able to provide for his support, training and education * * * or who has no proper parental care or guardianship or whose home, by reason of neglect, cruelty, or depravity, on the part of his parent or parents, guardian or other person in whose care he may be * * * ” (Emphasis ours.)
The record makes it clear that the parent in whose care and protection (such as it was) the children were at the time of the alleged offense was the mother. The statute with which we are here concerned enjoins upon the parent who has the custody of and who is providing for the children the responsibility of protecting them.
The diabolical and nefarious conduct of appellant and the mother in this cause should not be condoned by a possible “loophole” in the law, for, as stated by that great poet and essayist, Ralph Waldo Emerson, “Men are what their mothers made them.”
For the foregoing reasons, I most respectfully dissent from the majority opinion.